The “Permit Regime”: Bureaucracy as a Weapon

Those who pay attention to Israel’s military rule of the civilian Palestinian population since 1967 imagine military rule and the control of millions of civilians through images of pointed barrels of a gun, barbed wire, checkpoints and the notorious wall. Yet most of the weapons that control millions of Palestinians and effect their daily life, are the invisible weapons of a vast bureaucratic structure that restrict mobility, through permits, identity documents, a massive system of surveillance enabled by separate rules governing Palestinians and Israelis in the same territory.

Imagine if in order to go to work, go shopping, visit family, go to a cultural event you had to receive permission to move. Imagine that when you applied for a permit, you did not know if you would get one, what the procedure was like, who gets permits, and why.

Imagine that you were one of over 250,000 people that were denied entry because they were defined as a “security threat” by the secret service or the police. Imagine you do not even know why you were defined as such.

Imagine that you were classified as a suspicious, dangerous population, governed by colonial emergency laws that were justified by security reasons, and became increasingly worse during peace negotiations. During these negotiations, the restriction on your mobility grew, Settlements grew, and the type of bureaucratic and procedural violence that controlled your time, your space, your relationships and even what you could dream of, were invisible. I call this the bureaucracy of the occupation.

In the course of 53 years, accelerated by the Oslo process, this bureaucracy became one of the most extreme cases of a sophisticated apparatus to manage population movement. The specific context of this regime is best understood with a settler-colonialism framework, but that does not mean it does not bare many similarities with other types of contemporary border controls and policing. In fact, in its extreme manifestations it reveals the institutional logic of control systems throughout the world, which monitor populations through security classifications, particularly to police social inequalities.

Israel’s persistent justification for the management of Palestinian mobility and the perpetual daily violation of human rights of millions of people is presented as an absolute necessity for the security of the state and its citizens. Palestinian attacks have indeed cost the lives of more than a thousand Israelis in the last three decades. Yet, the structure and daily practices of the myriad institutions involved in the permit regime call into question the necessity of such measures as purely to do with security and point to other institutional goals, such as the political and social control of daily life on a massive scale and recruitment of thousands of informants to the Israel Security Agency known as Shin Bet.

The focus of this article is on Israel’s prevention of civilian movement in the Occupied Territories, but managing “dangerous” populations is a central concern for most governments in an age when terrorism, crime, immigration, labour and currently also viruses have been compounded into a broad range of what states perceive as threats to their national security. Population management systems on a global scale have been developed to deal with these security threats, by preventing and slowing down the movement of populations across and within contested borders. States deploy technologies, expertise, and staff to prevent movement, collect data about “risk” populations, and monitor, identify, and label target populations.

The global relevance to theorize the Israeli experiment in the occupied territories does not lie in Israel being the most representative sample of global mobility regimes. Yet, because Israel is a state in a perpetual state of emergency, Israeli practices of population management are mimicked and proliferated as part of the “global war on terror” and increasingly also under other pretences. Thus, the knowledge, technologies, and institutional logics of the population management apparatus in the West Bank have proliferated throughout Europe, the United States, and South Asia in the last decade. Aided by intensive marketing and training facilities for foreign forces, Israel was successful in disseminating its knowledge to many states, which struggle with governing and preventing movement of perceived dangerous populations.

The Beginning: Organizing the “Enlightened Occupation”

When the Israeli military occupied the Palestinian territories of the West Bank and Gaza in 1967, it already had experience running a military apparatus that governed a local population it perceived as hostile and suspicious in a settler colonial context, where preventing mobility was directly linked to settlements. A military government had ruled the Palestinians in Israel from 1949 to 1966 using a set of colonial tools, inherited from the British, to monitor the movements and control the daily and political lives of the Palestinian citizens of Israel. Of these, three powerful tools would also soon shape the organization of the occupation: emergency laws, classification of the population according to degrees of security threats, and spatial closure. The administrative scripts and legal templates of emergency used by the military government on the Palestinian citizens of Israel were used in the bureaucracy of the occupation, amplified in scope after the Oslo accords.

The administration of the territories included a set of tensions inscribed in colonial rule, exacerbated by the fact that it was presumed by many to be a temporary occupation. Officials vacillated between the desire to control the Palestinian population through administration, which required long-term planning, and their fear of assuming the economic burdens of managing it. As political scientist Neve Gordon explains, the distinction Israel made between the occupied land, which was of great importance to Israel, and its inhabitants, who were not recognized as the legitimate owners of the land, became the overarching logic informing the occupation.

Copy-and-Paste: Colonial Emergency Laws

Already four years before the Six-Days-War, in spring of 1963, Military Attorney General Meir Shamgar decided to use the British colonial Emergency Defence Regulations of 1945 as a legal contingency plan in the event of Israeli occupation of the West Bank. The Emergency Defence Regulations were a despised set of rules that had been used throughout the British Empire and earlier in Mandate Palestine to subdue uprisings, decapitate political opposition, and facilitate economic exploitation. The regulations created rule by decree and enabled extensive executive power and discretion.

Zvi Inbar, a young soldier serving on Shamgar’s legal team, wrote in his diary in 2001 that the template for administering the Occupied Territories was very literally copied and pasted from the British regulations of 1945: “Today I worked with a translator on preparing the [Emergency] Defence Regulations of 1945 in Arabic, and they needed to be purged of . . . terms like ‘High Commissioner,’ ‘His Majesty’s Forces,’ and replaced with ‘the commander in chief,’ ‘Israeli forces,’ and so on. ”

A few days later, Inbar wrote, “To continue the preparation of the defense regulations in Arabic, we found that the best way (…) is photo-copying the (British) regulations and preparing the text by cutting, pasting, and recopying.”

Yet copying and pasting did more than transfer the authority of the law. The colonial regulations carried with them the administrative memory of colonial rule, which involved not only laws but organizational practices and political dispositions, primarily the legitimacy to use separate legal systems for different populations based on race. In 1967, this same legal plan was used as scaffolding for governing civilian life in the Occupied Territories, and the role of the governors was again like that of district commissioners in the British colonies. These military decrees did not govern territory but the Palestinian population and were separate from Israeli law. In the following years, as Israeli governments endorsed Jewish settlements in the Occupied Territories, Israeli citizens were individually exempted from military law and placed under Israeli civil law. Although living under separate legal systems, Palestinians’ freedom of movement and the ability to work inside Israel was largely unregulated, creating an economic dependency for Palestinians, but also for certain sectors of Israel’s economy.

The Oslo Accords and the “Double-Headed” Bureaucracy

In 1993, Israel and the PLO signed the Oslo Accords. The institutional centrepiece of the agreement was autonomy of rule for Palestinians through the establishment of a Palestinian national authority. A gradual timeline for progress was determined that was to culminate in the establishment of a Palestinian state. The accords made a very significant institutional change in the administration of the territories, one rarely addressed in the violent history of blame and despair since their collapse.

The accords designed a complex jurisdictional map that divided the West Bank into chunks, of which each had a different legal system. Authority and responsibility were divided between the Israelis and Palestinians in jurisdictional spaces known as Areas A, B, and C. In Area A, the Palestinian Authority had responsibility for security and civil matters such as education and health care. In Area B, the Palestinian Authority shared security responsibilities with the Israeli military. In Area C, the Israeli military had sole security control.

The Oslo Accords drew a fundamental distinction between civilian powers, which included education, health care, water supply, trade, and population management of civilians, and security powers, which included border control, counterinsurgency against Palestinian militants, detentions, and law enforcement in Areas B and C. Oslo enabled the production of a matrix of spatial and legal regulation into the Palestinian territories, treating and targeting populations differently according to their location, population density, and proximity to Israelis. In turn, the matrix of risk and suspicion would determine the differentiation of violence—prevention of movement, arrests, detentions, confiscations, and other forms of control—imposed on the population.

The transfer of power from Israel to the “Autonomous Territories” called for a shift in the role of the Civil Administration from a state institution directly governing the lives of Palestinian civilians in the West Bank to a coordinating institution that was to oversee and direct the Palestinian Authority. The Palestinian Authority was to govern the lives of the Palestinian residents of the Occupied Territories, including the mobility of workers into Israel. In the new hierarchy of power, the Palestinian bureaucratic apparatus was supposed to produce for the Civil Administration the demographic and statistical data needed to make executive decisions on population management and then handle the daily paperwork and requests made in person through new joint Palestinian-Israelis institutions, the District Coordination Offices (DCO).

Thus, the Oslo structure created an administrative model of indirect rule that included both spatial segregation between populations and institutional separation on the legal and organizational levels. Under this logic, Israel would grant gradual autonomy to the Palestinians as it withdrew from the territories. The most poignant critical view of the Oslo Accords was that Israel was granted more territory, which would enable expansion of the settlement project but had less responsibility towards the Palestinian population and therefore less control of Palestinian civilian life. Israel had thus shifted its paradigm from colonization to separation.

During colonization, the Israeli military managed the lives of the colonized inhabitants while exploiting the territory’s resources. Separation meant that when Israel withdrew its security forces from Palestinian cities and transferred responsibilities to the Palestinian Authority, the government lost interest controlling the civilian population and intervened less in Palestinian daily life. However, my findings from research focusing on the control of mobility show that despite the actual structural shifts, the degree of control and knowledge of Israeli institutions about the Palestinian population only grew.

Labour and Occupation

Though rarely discussed in tandem, the configuration of the permit regime for Palestinian residents of the Occupied Territories coincided with the transformation of the labour force in Israel. The management of migrant workers and Palestinians, both crucial to Israel’s economy, was made possible by changes in the global labour market and the monitoring of the movement of laborers within it, facilitated by the Oslo Accords.

In the early 1990s, as migrant worker flows were expanding, nearly 40 percent of construction workers in Israel were Palestinians from the Occupied Territories. While the migrant worker industry was intended to devalue and discipline Israel’s local labour force, The Israeli policy of closure and separation applied to Palestinian workers following the first Intifada provided the conditions for recruiting work migrants and turning them from temporary substitutes for Palestinian laborers in the West Bank into an inseparable labour force in the Israeli economy. The policy of closure turned migrant workers into an instrument for managing the political conflict in the labour market. The dependence of Palestinians’ livelihood on freedom of movement rendered the permit regime a powerful economic weapon for population management through distinction between labour and political status. The racial separation of Palestinian workers from other workers in the job market fed into the rigid hierarchy of the labour force in Israel, already characterized by ethnic stigmatization and stratification: Jewish workers of European origin, Jewish workers of Middle Eastern or North African (Mizrachi) origin, Palestinian citizens of Israel, migrant workers, and, at the bottom of the pyramid, Palestinian workers from the Occupied Territories.

The language of the Oslo Accords aimed to stimulate a free flow of workers and goods from the territories into Israel, yet in 1995 the number of Palestinian workers in Israel dropped 50 percent due to closures. The disparity between the political discourse on free movement and free markets and the harsh realities of immobility, atomization, and poverty created fear and doubt about the accords among the Palestinians of the West Bank. In 1994 and 1995, suicide bombings in Israeli cities fuelled the justification and enforcement of the closure policy that limited movement through an array of technologies, including manned checkpoints, earth mounds, Border Police and military patrols, and the expanding demand for documents.

Bureaucratic Weapons of War

In October 2000, confrontations between Palestinians and Israeli forces quickly evolved to what will be known as the Al Aqsa Intifada. The first institutions to violently implode were the DCO systems. In extreme cases, Israeli soldiers and Palestinian security forces shot at each other in the shared security coordination compounds. The relations between the joint committees were severed overnight, and the Palestinian leadership was viewed by their Israeli counterparts in the Civil Administration as the “architects of terrorist attacks”. The implosion of the coordination institutions granted the Israeli branch of the occupation bureaucracy legitimacy to fully use its powers as an administrative weapon against the Palestinian civilian population. Palestinians were no longer viewed as merely a “hostile population” but as a “dangerous enemy population” involved in and supporting a direct war.

This situation spread shock and confusion within the Israeli bureaucracy of the occupation and motivated establishment of new criteria for distinction of friends from enemies. The only certainty was that every resident of the West Bank was a possible security threat. This belief turned the process of classification and identification of security threats into the crux of the administrative mechanism.

Very swiftly, identifying and thwarting security risks overshadowed all other goals of the bureaucracy of the occupation, and the Israeli Security service, the Shin Bet, set the criteria for classification of Palestinians into categories of security threat. Only days after the beginning of the intifada, the Shin Bet became both the source of knowledge and bottleneck of decision making in the administrative system of population management in the Occupied Territories.

At the same time, the collapses of the dual bureaucracy created severe administrative problems for the Civil Administration due to shortages in personnel and funds. The organizational effects were shattering. When Palestinians requested permits from Palestinian Authority offices, they were told that there was no communication with the Israelis, so they went to seek documents from the DCOs themselves. When Civil Administration employees demanded more personnel to cope with the thousands of Palestinians who arrived at their offices daily, their protests and multiple strikes were met by a flat refusal from the Ministries of Defence and Finance.

Because DCOs were the only organizations that could provide documents, the enormous queue of Palestinians grew daily. The influx was exacerbated by the steep rise in the number of Palestinians classified as security threats and banned from entering Israel. Between October 2000 and 2005, the Shin Bet classified more than 200,000 Palestinian residents as security threats, and the police classified another 60,000 as criminal security threats—around one quarter of the Palestinian adult male population at the time. Thousands of those denied entry attempted to remove the ban and obtain the coveted magnetic cards and entry permits.

Beginning in October 2000, Shin Bet’s control over the permit regime grew exponentially, changing from a body of agents and security experts to an organization that shaped the policy and practices of the administrative system. The expertise of determining whether Palestinians were friends or foes became an unassailable form of power. The definition of “security risk” itself was expanded to include many residents previously exempt and was not a stable category, but rather a fluctuating matrix of profiles sometimes based on age, gender, region, family, political affiliation, or intelligence information. As the blacklist expanded, so did the indices and measures of the security threat profile, which remained classified. The matrix of categories of security threats was an administrative puzzle depending on the type of movement required, its duration, and the person’s affiliation with Israel.

The Organizing Principle of the Permit Regime

The permit regime, the heart of the administration of the occupied West Bank, is a peculiar set of organizations and technologies if one judges it by the classic principles of rational bureaucracy and management. In modern bureaucracies, civil servants allegedly pride themselves on their efficiency, particularly in their efforts to adjust means to their goals and prevent waste of time and resources. However, the bureaucracy of the occupation is characterized by a phenomenon that could be called “effective inefficiency”, which is a product of the ambiguity of a system that is both civil and military with a severe shortage of personnel.

While administratively inefficient, these characteristics of the population management system achieve two important results for governing the West Bank: they create Palestinian dependency on the administrative system through widening the scope of monitoring and control, and foster uncertainty, disorientation, and suspicion within Palestinian society through the prevention of mobility. Indeed, the mobility regime, coupled with a massive surveillance apparatus also served as a means of creeping annexation over the last two decades. The prevention of mobility enabled an expansion of settlements and the territories around them.

From a legal perspective, the permit regime is not a statutory regime based on formal rules. Yet it is not a lawless system or one that is outside the law. The mix of administrative decrees, internal regulations, and ad hoc decisions that have developed into the permit regime is an extremely effective legal regime for the purposes of creating economic dependency by administrative means. Thus, space, race, and documents are the trinity of organizing principles of the permit regime. The first is closure—the legal-spatial control and containment of the population within the territory, the second is exclusion from citizenship, and the third consists of administrative practices that establish racial hierarchy through separate legal orders for different populations in the same territory.

The lack of regulation did not make the permit regime extra-legal or a site of lawlessness. On the contrary, the permit regime created a separate legal sphere that regularized Palestinian labour by military decrees while simultaneously excluding Palestinians from the rights provided by the Israeli Labour Law. The introduction of limitations on movement and physical control over space turned permits into valuable documents, and their production transformed the labour offices in the Civil Administration from a dusty, neglected administrative system that registered less than half of the workers before the accords into a powerful apparatus for decision making on all aspects of Palestinian life.

Closure brought with it a privatization and individualization of the relationship between the Palestinian subject and the effective sovereign, the Israeli military. When the double-headed bureaucracy imploded during the Second Intifada, so did the administration of the Palestinians as a collective through organizations or the Palestinian Authority. The relations that governed mobility were directly between Palestinian individuals and the Israeli state, which manipulated that power through the massive recruitment of informants who exchanged low-grade information for the ability to move.

One might think of closure as applying to the territory, but it was closure on a population. In practice, closure meant that movement of every Palestinian was constrained based on his or her identity, whether seeking to enter Israel or moving within the occupied West Bank or between the West Bank and Gaza Strip. The movement of Jewish settlers across the territories in the same closed military zones was permitted, so over time, an entire system of administrative enforcement based on race was developed, through documents, technologies, and infrastructures of segregation.

The Israeli Doctrine of Movement as Privilege

The Israeli state views the permit system as a regime of privileges that hinges legally on the authority of central command to issue decrees. Contrary to a regime of rights, which obliges the state to avoid infringement of individual rights, a regime of privileges allows the sovereign to grant (or withdraw) services for certain populations, in an instantaneous administrative decision, so the subject is dependent on the grace and goodwill of the ruler.

The political status of Palestinians is based on a racial divide. Governed by international humanitarian law, Palestinians are in a liminal legal space, as they are physically present in a territory controlled by Israel yet excluded from political membership and rights of citizens and the provisional rights of tourists or work migrants, whose status is defined by civilian Israeli laws. The administrative hierarchy that separates the ruling and the subjugated population in the same territory, based on identity, was an organizing principle of bureaucracy in most colonies, where different populations were governed by separate legal orders in the same physical space.

The entire permit regime is predicated on the justification that monitoring movement is the key to preventing terrorist attacks in Israel. At the heart of the massive profiling system of the permit regime are more than two hundred thousand residents of the West Bank classified in the population registry as security threats. Persons “denied entry for security reasons” cannot obtain magnetic cards and are prevented from maintaining commercial, familial, and cultural connections in Israel. The permit regime created a consistent anxiety and uncertainty for all Palestinians in the West Bank, due to the fluidity and instability of the documents they carried.

In the wake of the Oslo Accords, when the Israeli military pulled out from Palestinian cities, the Shin Bet use of human intelligence declined, because operating a web of embedded agents in a territory that Israel no longer fully governed was complicated. The alternative was to gather information by recruitment of many informers and to obtain intelligence with smaller risk to the life of Israeli agents. Beginning in 2002, as the permit regime resumed, maintained only by the Israeli bureaucracy, the scarcity of permits and scrutiny of the process created favourable conditions for the Shin Bet to recruit thousands of informants through the permit regime. This effectively meant that Israel now had more knowledge and control of Palestinian life in this epoch than before the Oslo Accords.

The “Fantastic” Blacklist

While the classification of someone as a security threat is a swift, invisible, administrative manoeuvre, its impact on people’s daily lives is immense. The blacklist is a major tool for creating uncertainty regarding mobility status and thus the precarity of a person’s personal and economic horizons. The omnipresence of the blacklist also creates a culture of suspicion and mistrust within Palestinian society, for good reason. One of the most common ways to be included on the blacklist is someone’s mention by a Shin Bet informant as a security threat.

Through standardization the Shin Bet created a key or index of tendencies, which included one’s age, geographic area, family ties, and participation in social, cultural, or political affairs. The index formulates a template of the security threat that is constantly changing but simultaneously enabled homogenization, which creates a collective profile yet erases collective political membership: although the classification applied to hundreds of thousands of Palestinians, each person had to fight and cope with the classification alone.

The (Un)Holy Sites of “Security”

Administrative flexibility, covert instructions and operations, the anonymity of the Shin Bet agents, and the finality of the Shin Bet’s decisions forge a set of practices that turn the Shin Bet classifications into law. The Shin Bet’s administrative blackmail system establishes an almost absolute authority to decide whether a person is friend or foe, based on the assumption that Palestinians are a dangerous population and a potential terrorist lurks inside nearly every Palestinian civilian. Shin Bet officers wield absolute discretion regarding profiling classifications. The toolkit of practices and the authoritative role the Shin Bet has within the bureaucracy of the occupation all contribute to the omnipotent image of Shin Bet agents by Palestinians classified as security threats.

The accounts of Palestinians describing conversations with Shin Bet interrogators were the same stories, with little variation. They reflect a well-established method of exploiting the administrative framework of the permit regime for recruiting informants from the local population in the West Bank and expanding control over the private lives of Palestinian residents.

In practice, the interminable wait to know the reason for the security restriction, the uncertainty that comes with the wait, and the incessant doubts about the causes of the restriction and the self-blame that accompanies it, turn the Shin Bet offices at the DCOs into places filled with tension and awe, hope and despair, shrines where a man is brought into the presence of the sovereign power itself. People wait there, praying and hoping they will not be offered a deal to collaborate that will put them in an impossible situation: accepting collaboration means betraying your community and nation as well as risking your and your family’s lives, declining can end any possibility of earning a living once and for all, relinquishing hope for economic survival.

A Palestinian who acquiesces to the deal finds himself outside the Palestinian collective in the West Bank where he resides; despite collaboration with the Shin Bet, he remains external to the Israeli collective. A Palestinian who rejects the deal is banned from moving physically across the space and, in many ways, from taking part in social and economic life.

The Shin Bet’s power grows with every collaborator recruited by administrative means. All other players in the permit regime—the Civil Administration, the Ministry of Industry, and even the human rights groups—are essential for the manufacturing of exceptions by the Shin Bet and their transmutation into rules to which new exceptions will be made ad infinitum.

The Grid of Surveillance

The permit regime encouraged Israeli organizations to harvest information about the population through data, biometrics, and increased opportunities for surveillance and recruitment of informants. Beyond the older forms of colonial surveillance, through registries, intelligence, checkpoints, and local informants, Israel now employs a plethora of new technologies, such as phone and internet monitoring and interception, CCTV, and biometric data collection, facial recognition, and the monitoring of use of social media.

The centrality of profiling to population management systems was not exceptional or unique to the permit regime in the territories. Its features were very similar to the profiling that originated in the British colonial system of surveillance developed between the two world wars in India, which later diffused to the rest of the British Empire, including the British Mandate in Palestine. However, the complexity of Israel’s bureaucratic arsenal, implemented on millions of people in a particular territory, is historically unprecedented.

That such arsenal would be only limited to the West-Bank was always a wishful thinking. Indeed, parts of its underlying logic was recurrently used against Palestinian citizens of Israel. In the face of combating the spreading of the novel corona virus Israel’s prime minister authorized, through the emergency defence regulations, the secret service to use the massive surveillance technologies, to surveil Israeli citizens, in an unprecedented move to use the grid of surveillance developed to control, monitor and intervene in Palestinian daily life, on Israelis. These technologies developed by companies are then marketed to governments around the world.

The Way Forward

Human rights organizations, international organizations, and foreign missions have made attempts to reform the permit regime through negotiation, petitions to the courts and by other means. In my work as a lawyer who represented Palestinians challenging that regime, I was myself a part of this struggle. After years of battling in courts, writing petitions, and contacting the Civil Administration, I came to the realization that any legal battle against the permit regime was futile. Even in the rare cases in which we won the case, we lost, as each case created more regulations, crafted better answers for the Civil Administration, and highlighted grey areas and loopholes for the secret service. Taking on any part of the permit regime, including petitioning against it, meant it solidified its ad hoc activities into a legitimate institution, created a jurisprudence around it, normalized the completely impossible, absurd, and unacceptable situations, and rendered it part of the repertoire of the security justifications that made it grow.

The constant living emergency of the permit regime that was the foundation of Israel’s colonial bureaucracy in the territories created a distinct set of organizational practices in which race and racial hierarchy infused the practices and routines of the bureaucracy. It generated more justification for racism, which in turn justified the use of that very bureaucracy as the major weapon of control against the population. The only important outcome was to end the permit regime—not to reform it in any way. One could not resist one policy or another successfully, but rather had to reject the permit regime in its entirety. Similarly, the fight inside the military courts was impossible, and the only legitimate struggle was one that would end the military court system.

Out of the dramatic moment of fighting the terrible classification as a security threat, I understood that the system itself I was part of as a lawyer was creating the security threat through the persistent procedural violence it unleashed on millions of civilians. At the same time, I met people who gave me hope that we could live together equally. The law was important, and so were rights, but I realized the way to change was not to challenge a system that grew stronger from critique, that separated and partitioned what could not be divided. Meeting those who fought the classification as a security threat eradicated my faith in Israel’s legal system, but not in the possibility to change its political regime and to demand citizenship and equal rights for all the inhabitants from the Jordan River to the sea. There are possibilities to achieve freedom, equality and democracy in Israel/Palestine. One of those possibilities, is the programme of An Open Land for All, which I support. At the moment, as the Israeli government declares it will attempt to turn its “creeping annexation” de facto into annexation de jure, it is important to acknowledge the central role of the bureaucratic weapons of war in the prevention of a Palestinian state and a peaceful solution through the restriction on Palestinian mobility and access to land.