DevMode
This will not be an article about statistics, numbers, and gruesome details of the human-rights situation in the occupied Palestinian territories. As it happens, the human-rights situation in the occupied territories is one of the best documented in the world. The facts, figures, and descriptions can be found in the annual and other reports of many local and international human-rights organizations.1 All that can be said about it is that it is not the worst in the world, but also definitely not the best. Nor will this article even attempt to propose novel, creative solutions. Instead, this article will try to expose some of the complexities that underpin the current human-rights situation in the areas under Palestinian National Authority (PNA) control. Needless to say, the account will be fragmented, quite anecdotal, and will probably not do justice to reality.
Most of the human-rights violations in the occupied territories remain, to this day, a result of Israeli occupation. Such violations are multi-layered. The first and most obvious is the Israeli violation of the collective right to self- determination. Israel, legally and factually, still controls the whole of East Jerusalem, the West Bank, and the Gaza Strip, "Area A" included. While the occupation remains, the possibility of building the legal and political guarantees for the respect of human rights is virtually nil. Then there are direct human-rights violations, both in terms of "concrete" actions, such as extra-judicial executions, torture, and house demolitions, or in terms of the pervasive, routinized, everyday measures committed by the soldiers and settlers such as the denial of freedom of movement, economic deprivation, physical and verbal humiliation, and all the other trappings of an apartheid regime. These, in addition to their immediate effect on their immediate victims and their families, create long-term social effects that would require a great deal of resources to counterbalance.

Negative Provisions

Most important to the present context, however, is the effect of the occupation on the actions of the PNA. These include both structural conditions and direct pressure to violate human rights. While agreements between the two sides contain token references to the respect of human rights, such provisions remain devoid of any implementation or enforcement mechanisms. Bluntly speaking, the human-rights provisions of the various Palestinian-Israeli agreements are a joke when read in conjunction with the "war against terrorism" (cum arbitrary "wanted lists," arbitrary arrest, and torture), "the war against terrorism's infrastructure" (cum cracking down on clinics and kindergartens "associated" with "terrorist groups"), and the "war against incitement" (cum deprivation of the freedom of expression).
The ineffectiveness of these provisions becomes more striking when the PNA's partner in ensuring respect for human rights is a state that legalizes torture (Israel, according to the U.N. Committee against Torture), and the verifier is an agency that used to distribute torture manuals in Guatemala in the not-so-distant past (the CIA).
Obviously, blaming Israel for all the evils in the PNA areas is inaccurate. A very real portion of the blame falls on the Palestinian side. In this context, one can differentiate between two concepts: human rights and citizens' rights. The former include violations of the rights of the individual as stipulated in international instruments and standards. The latter go deeper to include failure to set up a system that guarantees respect for the various rights, and by extension, engender violations of the former. In other words, human-rights violations can conceivably be remedied through recourse to law, while citizens'-rights violations negate the possibility of such recourse. Citizens' rights, then, include concepts such as the rule of law and separation of powers. This article argues that human-rights violations are predominantly committed by Israel, while citizens'-rights violations remain a salient aspect of the PNA.

Leadership Style

Some would argue that the Palestinian side had no choice but to succumb to Israeli pressures in unbalanced negotiations in which it had very little to bargain with. This, however, does not explain why, in the spheres where the PNA has a margin, its performance has also been less than exemplary. The judiciary is a case in point. No political will is directed to creating an independent, functioning judiciary. Pessimists would argue that the contrary is actually the case, where extra-legal dispute settlement mechanisms (through patronage, connections, and tribalism) are being supported at the expense of the judiciary. That the Independence of the Judiciary Bill generated so much interest that it passed with only eight votes at the Palestinian Legislative Council, is telling. Here, we are not even talking about the judiciary being involved in cases of political dissent and other areas of concern to "the security of Israel" (who cares about the security of Palestinians anyway?). In these areas, let the Israeli government and U.S. Vice-President Gore have their State Security Court. We are talking about regular courts dealing with regular cases to ensure that regular life is ruled by law.
One can safely say that the PNA suffers from an ineffective legislature, a virtually non-existent judiciary, and an inefficient, bloated bureaucracy. However, it would be self-delusional to assume that these are the causes of the current citizens' and human-rights situation. They are actually symptoms of a phenomenon that goes way deeper. They are symptoms of a leadership style - which, by the way, reproduces itself on all levels of the exercise of power - that cannot deal with institutionalization. One that honestly believes that it, and only it, knows best and must therefore be involved in every decision. With this mentality, the role of the arms of government changes significantly. The legislature becomes a nuisance that has to be contained, rather than a partner to be worked with. The judiciary becomes a body whose decisions can be put aside by the leadership that knows best. Never mind that a judiciary, even one that makes occasional mistakes, is an indispensable element for maintaining stability based on equality before the law and derived from universal legal entitlements.
The role of the bureaucracy changes significantly. It is no longer there to exercise discretion as delegated to it through law in order to achieve goals that can be discerned by looking at the laws that govern their functioning. Instead, the function becomes to help the leader to do what is right (the latter being determined ultimately by the leader). Institutionalized delegation of authority has no place in such a scheme. Some argue that this situation actually includes a high degree of delegation since low-level officials are, to a large extent, masters of their own fiefdoms. However, if one is to define delegation as a regulated process with clearly demarcated boundaries derived from a rational, law-ruled set of objectives, then the kind of "delegation" in the case in question would be better described as chaos. The primary role of the bureaucracy becomes to provide salaries and perks for people who would otherwise - out of envy, no doubt - distract the leadership from its noble mission. In this context, transgressions by the executive that do not affect the leader's path are glossed over as part of the cooptation package.
Does this mean that if certain high-up individuals are changed, human-rights violation will cease and the rule of law will reign supreme?
Not quite so. One of the main internal causes of the unacceptable human-rights situation in Palestine is that the rule of law in Palestine still has to compete with other social institutions and other legitimacies. Social relations, which include political relations, in Palestine are still governed by gifts and patronage. Institutions that cater to this (tribalism and factionalism come to mind) thrive. By definition, the rule of law is the negation of patronage. As such, it is almost always bound to lose out when confronting a status quo that has its established beneficiaries.

Loyalties and Hierarchies

The clientelist mentality in Palestinian society was very ready and welcoming for this mode of government. I am still amazed whenever I open a local newspaper and find letters of "thanks and gratitude" to the President for his generosity in appointing someone, in ordering the release of a prisoner, or in allocating the funds for a street light in some village.
A society that looks at public appointments, budgetary allocations, and the implementation of court rulings as favors requiring public declaration of gratitude, and by extension other forms of blind loyalty, is not a society that functions through rights. Put simply, and with a good measure of over-generalization, rights and the rule of law are not internalized values in Palestinian society. Why it is so is beyond the scope of this paper, but one can drop some hints: the occupation, tribalism, and factionalism again come to mind. The PNA is not unhappy with this situation. According to Marcel Mauss,2 gifts require reciprocity. When material reciprocity is not possible, loyalty substitutes and hierarchies are established. This was starkly evident recently when two murderers were executed not because the law so dictates [this is not to be read as accepting the death penalty if prescribed by law], but rather because there was overwhelming public demand. Not surprisingly, the next day, newspapers made a lot of money from letters of gratitude and renewed loyalty and, the day after, the whole story was distant history. Gifts and appeasement become a means for stifling real, constructive opposition. Therefore, it is not surprising that the PNA is actually nurturing such practices and institutions.
In this setting it is quite difficult to even start talking about human rights. Rights are not gifts or charity; rights are something one is entitled to and can obtain directly through law and without an intermediary. If there is no rule of law, if the public functionary (civil or security) locates his loyalty not with the law but with the patron, then he will gear his actions towards pleasing the latter. When the public sees that the law is ineffective, it is only natural that other means to gain redress are sought. Stability and predictability are two of the main justifications for the existence of law.
Hence, it is possible to say that the human-rights situation in Palestine, if one is to gauge it by reference to the number of deaths in custody and the prevalence of torture, is not extraordinarily bad. It is even possible to say that the PNA has been receptive to human-rights complaint and has encouraged some developments. What cannot be said is that there is any fundamental development in setting up institutions that would guarantee, in a systematic, "default" way that citizens' rights are not violated.
If the article is to end here, people who believe in unchangeable characteristics of nations and cultures (i.e., racists) would have a great time. They were right, after all, to say that the Palestinians are, by their very nature, incapable of ruling themselves. To counter this essentialist argument, it is enough to point out that, while the neat separation of the categories of occupation, authority and society is convenient for analytical purposes, reality is a bit messier.
The fact that society does not view the law as a viable route to realize entitlements is partly due to "cultural" reasons, partly due to the occupation whose justice administration system was (and still is) grossly unfair, and partly due to the PNA which works through pre-state, and by definition pre-citizenship and pre-law, institutions to facilitate its control. That the PNA lacks institutionalization is partly due to the "nature" of those in power, partly due to the occupation which imposes major structural limitations, and partly due to the society which has perpetuated this form of government. In this vicious circle, the occupation still stands as the only self-contained impediment.

A Civil Society

What then in this extremely complex, very formidable situation, is the role of human-rights activists, if any?
As a matter of fact, our role is no different from that of our colleagues in most other contexts.
First, there is the redress function. Dealing with individual cases is extremely important. While it is very tempting, in light of the sheer magnitude of violations, to disregard the importance of the case-by-case approach, it is always encouraging to remember that each successful case means a big deal to those whose rights have been restored.
More importantly, in the "bigger scheme" of things, and in setting up a system of respect for citizens' rights, is the role we can play in the creation of a Palestinian civil society. At this point in time, there is no Palestinian civil society. None could have existed under the occupation. What we had was a liberation movement and service providers. In dealing with the PNA, neither of these functions is appropriate. Opposition is the role of political parties, while service provision is the duty of the government. If NGOs continue to play these roles, they would be doing a great disservice to Palestinian development. They would be offering a very convenient excuse against the development of political parties, and for the government abdicating its duties.
Instead, human-rights organizations, like other NGOs, should start acting like a civil society. They should start functioning as buffers between the public and the political sphere. For this to happen two necessary conditions should exist. First, we should tap into the public's sentiments and needs, rather than the donors' and "elite's" priorities. If this does not happen, we should have no legitimacy, and would not be at all effective in convincing society to abandon pre-state institutions in favor of, for the lack of a better term, modern ones. Second, if we want to be called a civil society, and if we want to have a real impact, we should engage the PNA in a constructive dialogue. And before anyone starts screaming bloody murder, "constructive dialogue" is a dialogue whose rules are clearly set and which contains red lines that cannot under any circumstances be crossed. Further, the dialogue is not conducted in seminars and conferences, but rather through every day action and interaction. Without this dialogue, our role would remain confined to reactive, cosmetic action, and chances of us fundamentally changing anything, and of us being a civil society, with all the implications of social change that the term implies, would remain very slim.


1. For example, see The Palestinian Independent Commission for Citizens' Rights (1998), Third Annual Report (Ramallah: PICCR). Also, Amnesty International (1998), Five Years Since Oslo: Human Rights Sacrificed for Security.
2. M. Mauss, tr. by L. Cunnison, (1967), The Gift: Forms and Functions of Exchange in Archaic Societies (New York: W.W. Norton).

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