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:

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.

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.