by Naser Rayyes
According to the current definition, rule of law means the submission of state authorities to the law, and their compliance to its rulings and prohibitions. It is the principal guarantee that protects individuals’ rights and freedoms in the face of the arbitrariness of state authorities. There is no doubt that discussing the topic of rule of law within the Palestinian territories after the establishment of the Palestinian National Authority (PNA) is not easy, as we are not discussing a system or authority within an independent state, but a political entity that lacks the components of complete sovereignty.
Due to the Israeli occupation that still oppresses and controls the population in the Palestinian territories, the Palestinian entity remains occupied, besieged and split into disparate geographic areas, despite the fact that, under the interim agreements, the PNA was to practice its authority and control over these areas. The imprint left by the Israeli occupation has affected the establishment of rule of law within the West Bank and Gaza. The many political, social and administrative disruptions have had serious repercussions on the Palestinian population as a whole.
Since the end of the Ottoman reign after World War I, Palestine has been governed by different external political and administrative systems, the first of which was the British Mandate, approved by the League of Nations on July 21, 1921. This administration remained in place until May 14, 1948, when Britain officially terminated its mandate over Palestine. After that, sovereignty over Palestinian territories was divided between Israel, which declared its existence on May 15, 1948 and took control of two-thirds of the Palestinian territories, and the Arab forces that had come to fight against the Zionist movement, in defense of the Palestinian population. The Gaza Strip came under the administration of Egyptian forces, while Jordanian forces ran affairs within the West Bank, until it was unified with Jordan.The Palestinian territories remained in this state until Israel took control of what was left of them after the June 5, 1967, Israeli attack.
As a result of political developments in the Middle East after the 1991 Gulf War, and specifically the Madrid peace conference, the Israeli and Palestinian parties entered into bilateral negotiations that led to the signing of the Declaration of Principles (DOP) in Oslo on September 13, 1993. This was followed by a series of bilateral agreements dealing with the situation in the Palestinian territories during the phase between signing the DOP and reaching a final solution. This was supposed to culminate in the signing of an Israeli-Palestinian peace agreement and the establishment of a Palestinian state.
The Effects of Changing Administrations on the Political System
Naturally, we are most concerned, when studying the changing administrations in the Palestinian territories, with the effect they have had on the political system currently in place. It is important to study this, as the series of regimes that controlled Palestine paid no attention to the rule of law or human rights and freedoms. Each of the regimes that controlled Palestine needed to create mechanisms to establish a Palestinian authority (legislative and judicial) and rule of law institutions. These operated during the reign of these regimes, but paid little heed to the needs of the Palestinians. The criteria for their creation sprang from the need to facilitate stable and quiet rule over the Palestinian territories. Thus, the most important constituents of the rule of law (the judiciary and legislative bodies) were influenced by these directions. During these eras, there was hardly any respect for rule of law, human rights or freedoms.
The judiciary established during this stage was not an independent one. The Palestinian judiciary was one of the sectors most targeted by these regimes, which purposefully neglected it and deprived it of its most important components. This happened for a number of reasons, mainly the conviction of these regimes that they should oppose the existence of an independent and neutral Palestinian judiciary, because it was against their interests, given that underlying political aims were behind their control of the Palestinian territories.
The various regimes, in a quest to consolidate their hegemony, also resorted to methods such as impeding the tasks and denying the authority of the judiciary through a series of restrictions applied according to the executive authority’s interests. Thus, the judiciary lost its independence and all these factors eventually rendered it obsolete. Possibly, what increased the marginalization of this authority and led to its alienation was the fact that these regimes, through their legislation, gave a loose reign to the summary judiciary, widening its scope of influence. It came under the influence of the administration of each regime and constituted the principal judiciary, while the ordinary judiciary adopted the role of the extraordinary due to restrictions on its authority, scope of influence and specializations.
One cannot judge the current state of the rule of law in Palestine without considering the overall political and administrative developments that took place in the Palestinian territories during the period between the end of the Ottoman Empire’s administration and the establishment of the Palestinian National Authority. The realities of the rule of law in Palestine can be discussed objectively and their repercussions studied by referring to the influences implicit in delineating the nature of the current Palestinian political regime. Another reason for revisiting the roots of the problem is that the implications of the various historical stages continue to influence the Palestinian judiciary. In effect, these influences have impeded the emancipation of the Palestinian judiciary and its ability to perform adequately. The rule of law in any society requires the existence of certain components that can be briefly noted as legislative, judiciary or executive.
The Legislative Component
The laws in place in the Palestinian territories have differed according to the various political regimes in power. The legal system is composed of a large and intertwining mass of legislations and regulations, including Ottoman, British Mandate, Egyptian and Jordanian laws. Obviously, despite the confusion this causes, sorting out this legal heritage will take time. As number of these legislations have been in place for more than a century (even the most recent of these laws more than 36 years old) their legal status is established and difficult to bypass.
On its establishment, the PNA dealt with the status quo by issuing new laws for matters that had not previously been tackled. More than 40 laws have been introduced since the establishment of the authority. Most related to human rights and public freedoms, in addition to requirements related to the establishment of the PNA, such as laws on legislative and local council elections. The publications and media law was also adopted, along with the court formation law, the judicial authority law, the civic procedures law, the criminal procedures law, the basic law, the rehabilitation and reformatory center’s law, the public meetings’ law, the charitable societies’ law, the labor law, the investment law and others.
The effects of these legislations on the rule of law served the general purpose of codifying the issue of separation between the authorities and the rights and freedoms of individuals. Guarantees specified that they should not be violated or diminished in any sense. This is evident in the basic law, which regulates through its articles and provisions, the definition of these rights and public and private freedoms, and the penal procedures law, which stipulates the protection of these freedoms and guarantees a just trial for the accused, as well as protection in case of arrest or detention. The rehabilitation and reformatory center’s law covers similar situations. In this context, one could say that all Palestinian laws dealing with citizens’ rights and freedoms are in line with, and consolidate, international conventions on the rights of the individual.
Any legislation will lose its value if there are no guarantees for its implementation. Thus, there is a definite need for an honest, neutral and independent judicial authority that is able to impose respect for the law and its implementation. One can observe that the Palestinian judiciary, for a number of reasons, lacks the independent status from which it is supposed to benefit. Despite important steps, such as issuing the law for regular court formation and the Palestinian judiciary authority law, which had a clear effect on the duplicity of the judicial system previously in place, the Palestinian judiciary is still unable to shoulder its full burden of responsibilities.
The most prominent obstacle obstructing the Palestinian judiciary since the establishment of the PNA is the lack of Palestinian sovereignty over all Palestinian territories. Despite administrative and sovereignty issues created by political developments after the Madrid conference, there was Palestinian and Israeli acknowledgment of each other’s existence, the signing of the DOP in Washington on September 13, 1993, in addition to a number of interim agreements, resulting in the PNA taking up responsibilities within the Palestinian territories. However, these developments did little to enhance the status of the Palestinian judiciary. All the interim agreements did not only have a negative effect on consolidating the Palestinian judiciary’s status quo as it had been during the Israeli occupation, but also included a functional division of judicial and legislative tasks between the PNA and the Israeli occupying forces within the Palestinian territories during this period.
The danger of such a concession lies not only in the division of tasks, but also in the context and legal reference of this partnership. It became part and parcel of the Palestinian-Israeli interim agreements and ensuing memorandums of understanding, thus specifying within them the basis and legal reference currently being adopted for the ratification or rejection of legislations that regulate the practices and behavior of both sides.
Relying on the principles of the interim agreements and on the rights and obligations they endorsed for each party during the interim phase meant that the principles of international humanitarian law, specifically those of the Fourth Geneva Convention, were neglected. This convention should have been the only legal reference used to define Israel’s authority and its limits within the Palestinian territories.
The Interim Agreements’ Divisions
The negative effects of developments on the Palestinian judiciary following the interim agreements can be clearly seen within the new administrative and legal realities in the occupied Palestinian territories. According to the interim agreements, they were divided into three major regions as follows: “A” areas are under PNA sovereignty. It has almost total security control, can practice a number of sovereignty rights and administer affairs. This includes all the large cities in the West Bank (apart from East Jerusalem) and approximately 40 per cent of the Gaza Strip (apart from the settlements). After the Wye River memorandum and the Sharm al-Sheikh Agreement, these areas were supposed to include a number of regions and villages that had previously been categorized within the interim agreements as areas “B” and “C”.
“B” areas are those over which the Israelis supervise security, while the PNA is responsible for public order and administrative functions. This currently includes most villages, urban communities, small towns and the lands surrounding them. According to the Wye River and Sharm al-Sheikh agreements, a large proportion of these areas were supposed to be added to the “A” areas.
“C” areas are under almost total Israeli sovereignty and security supervision, with the PNA in charge of only minor administrative details. Most of the Palestinian occupied territories are currently “C” areas, including settlements and other Israeli housing or industrial establishments, lands allocated to the Israeli occupation forces, such as military camps, training areas and other areas that have been declared closed military zones.
The negative effects of the existence of these divisions on the Palestinian judiciary can be defined as follows: Executive bodies are one of the most important tools utilized by the judiciary to execute a judge’s rulings. Thus the jurisdiction of Palestinian executive bodies is essentially limited to areas “A” and “B” (“C” in exceptional cases), as previously agreed with the Israelis. Since these executive bodies have been unable to physically reach most areas, the Palestinian judiciary has been deprived the possibility of executing its jurisdiction upon most of the Palestinian occupied territories.
The restriction of Palestinian authority jurisdiction to areas “A” and “B” has consolidated protectionism and lack of judicial transparency for hundreds of individuals who have broken the law. Many people have violated local laws because they realize that Palestinian jurisdiction and its tools of execution are impotent and unable to pursue them to “C” areas.
The most recurrent incidents of this type involve bouncing checks, fraud, embezzlement and similar felonies. Dividing the territories in three has meant that judicial procedures take much longer than normal and, as a result, many individuals lose interest in resorting to the courts, especially if their cases require a speedy resolution. Arresting people who should be brought to justice is an impossible feat for the Palestinian security forces unless they have the approval of the Israeli authorities, which usually requires a lengthy coordination process.
The Israeli authorities also often put the areas under their security supervision under curfew, thereby preventing lawyers and judges in these areas from reaching their places of work. Thus, Israeli measures have obstructed the functioning of courts and led to the postponement of numerous cases due to the inability of the plaintiffs, lawyers or judges to reach the courts because of Israeli-implemented curfews and closures.
The Existence of an Executive Authority
During the present Intifada, Palestinian police stations have been persistently targeted in Israeli attacks and, as a result, there are no police buildings left in functioning condition. The activities of these institutions have also been obstructed in all Palestinian cities due to the Israeli invasion and direct military reoccupation. It has become impossible for the police force to carry out its duties, either on the level of executing judgments or of carrying out arrests and detentions.
The most dangerous aspect of the interim accords is the fact they have ratified the division of legislative responsibility within the Palestinian territories between the PNA and Israel. This is stated in the fourth paragraph of article 17 of the Washington interim agreement which read, “For this purpose the Israeli military authority will keep the necessary legislative, executive and judicial responsibilities on the basis of international law.” Paragraph eighteen of the same article, refering to the boundaries and controls of the legislative council, mentions that, “Concerning this article, legislation will mean any primary, secondary or basic laws, regulations and other prospective legislations.”
In addition, one of the most negative effects of dividing the Palestinian territories is the Israeli retention of their right to issue and execute military orders. This has created a number of practical problems within the working mechanisms and performance of Palestinian jurisdiction. However, Palestinian jurisdiction has been able, in areas “A” and “B”, to solve a number of problems concerning procedures that conflict with the population’s interests.
Palestinian jurisdiction blocked a large number of military orders when its judges stopped implementing them. After the establishment of the PNA, Palestinian jurisdiction dealt eclectically with Israeli military orders, positively amending some of them for use within local legislation. The PNA stopped utilizing a number of military orders, as announced by decree 2 of 1995, under which 46 military orders were overruled. Decrees 145 and 248 and decision 20 of 1998 rescinded 95 military orders. The PNA’s overruling of some military orders, and its introduction of legislation opposing them, has led to confusion, given that the Israelis have refused to acknowledge these changes and continued to implement all military orders issued within the Palestinian territories.
In addition, the occupying forces’ refusal to concede to new legislation has led to difficulties interpreting the rules that organize life within the Palestinian territories. This has made it impossible to implement Palestinian rulings that contradict military orders in “C” and “B” areas. The interim agreements ratified the Israeli occupiers’ right to legislate or issue military orders within the Palestinian territories under its jurisdiction, effectively leaving the Palestinian territories subject to a dual legal system. Additionally, the occupying forces’ determination to issue legislation has confused Palestinian citizens who do not know which legal system they should comply with.