This article explores the duality of emergency powers and criminal law in old and new formations of empire. Set against the backdrop of the US “war on terror,” I link discussions around current articulations of empire and the treatment of “enemy combatants,” illuminating new connections between empire, emergency, and “enemy penology.” Focusing on Palestine/Israel, I explore the duality created by emergency powers and criminal law from the late British Empire to contemporary Israel/Palestine as an “imperial formation.” Through a genealogy of emergency legislation, military courts, and two case studies from the 1980s Israel, I show how emergency powers constitute a penal regime that complements ordinary criminal law through prosecutions of racialized enemy populations under a distinct exclusionary and punitive legality. Building on Markus Dubber's Dual Penal State, I demonstrate how the—openly illiberal—dual penal empire (i) suppresses political resistance (insurgency, rebellion, and terrorism) and (ii) institutionalizes enemy penology through emergency statutes and military courts. Thus, in imperial formations, such as Israel and the US—which deny their illiberal features—emergency powers are framed as preventive security and denied as part of the penal system, while enemy penology operates in plain sight.

Applying human rights beyond state borders is thorny. Which law governs the property rights of a Palestinian whose orchard lies across the Israeli border, or the cross-border shooting of a Mexican citizen by a United States border control agent? This article explores the relationship between constitutional law and international law in the extraterritorial enforcement of human rights by offering a typology of models: the American, European and Israeli models. These models are analysed comparatively, highlighting their chosen legal source of rights: the American model applies constitutional law, the European model uses international law, and Israel combines the two.The article argues that the choice between constitutional and international law is important as it affects the nature and scope of rights, and reflects the relationship between the state and the territory it controls or within which it acts. The dynamic formation process of the Israeli model demonstrates the multiple possible ways to combine these two sources of law and formulate the relationship between them.All three models share a ‘constitutional mindset’: the use of basic legal concepts and reasoning in legally grey zones. However, these transnational processes are not deterministic and could result in original concepts, contradictions and discrepancies, as well as serve different political visions.

This article explores the cooptation of human rights discourse by looking into how Israeli military judges in the Occupied Palestinian Territories use human rights as professional capital. Previous research into human rights arguments legitimizing the Israeli occupation remained confined to a unitary image of the state. Here, I dissect the separate professional project of military judges. Optimizing a self-congratulatory argument, judges portray themselves as human rights heroes of Palestinians. But while independent judicial activism would criticize human rights violations by the state, military judges use human rights as synonymous with legal professionalism, while avoiding criticism and sidestepping human rights’ challenge to state power. Using a multimethod approach including analysis of judicial decisions, academic articles by military judges, and in-depth interviews, I argue that between 2000 and 2010, Israeli military judges were responding to a professional legitimacy crisis by what I call mimetic convergence. Relying on new institutionalism and postcolonial theory, mimetic convergence produces belonging and mobility for a professional subgroup that experiences alienation in the “colony” through convergence with the specific characteristics of the legal community of the “metropole.” Mimicking the state instead of criticizing it permits the two projects— promoting military judges professionally and legitimizing the state’s colonial occupation—to coalesce.

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