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.
The Judiciary
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.
Conclusion
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.