In recent years the interaction between the Israeli-Palestinian conflict and the rule of law has produced two phenomena that are central to any eventual peaceful resolution.
First is a Palestinian paradox. Here we have an increasingly lawless society that has largely failed to build and maintain functioning court and police systems. Its legally elected leader is seen as a Mafioso thug by the entire world, now including most Arab states. Its latest minister of justice, Nahed Al Reyes, just threatened to resign in protest at the legal situation.
Yet this failed regime in a failed proto-state is able to persuade the international community that international law is on its side.
Last month's International Court of Justice opinion on the fence and the United Nations General Assembly recommendation to embrace that opinion are the most recent examples. At a broader level, the international acceptance of one-sided Palestinian interpretations of UN General Assembly and Security Council resolutions such as 194 and 242 also bears witness to Palestinian and general Arab success in recruiting international law to the Palestinian cause.
One reason for this paradoxical Palestinian success is Israel's inclination to abdicate any role in arguing the legal aspects of the Palestinian case in international forums. Not only did Israel not present its case to the ICJ in The Hague, for decades it has allowed Palestinian interpretations of relevant UN resolutions to go practically unchallenged, to the point where they are generally accepted by the world. How many informed international observers know that a "right of return" is not even specifically mentioned in 194-which, incidentally, the entire Arab contingent to the UN voted against in 1949-or that 242 does not mention Palestinians and was not intended to deal with their conflict with Israel?
We in Israel are apparently so certain that the world is against us that we withdraw from the international legal arena even when we have a good case.
This brings us to the second phenomenon, an Israeli challenge regarding the rule of law. The issue is the settlements. The Israel High Court of Justice has acquiesced in the policy of a long series of Israeli governments regarding the exclusive use of public or crown lands in the West Bank and Gaza for Jewish settlement purposes rather than for the welfare of the Arab residents. This constitutes a blot on an otherwise exemplary court record of upholding the rule of law. Now we finally have a prime minister who appears to be determined to begin dismantling settlements-an absolute prerequisite to any attempt to implement a two state solution and thereby maintain Israel as a Jewish and a democratic state. Assuming he can create and maintain a governing coalition dedicated to disengagement, Israel faces the efforts of a determined minority, the religious-ideological settlers, to deter and intimidate the government and its security forces and prevent removal of the settlements-sometimes using legal means, but in other cases resorting to violence. The settlers' behavior in confronting government attempts to remove outposts is a harbinger of things to come.
Like many countries, Israel has its problems with the rule of law. We have underworld bosses, trade in drugs and prostitutes, gangs in low income neighborhoods, wife-beaters, white collar crime, and not enough police. We also have very specific problems regarding the rule of law under conditions of occupation and warfare in the territories: as IDF Chief of Staff Moshe Yaalon notes, roadblocks and the destruction of houses "don't look good"; nor do accidental deaths of Palestinian civilians. Yet these are the inevitable wages of war; look at the US occupation of Iraq. Israel may have long ago lost the title of "enlightened occupier", but in military legal terms its behavior is no worse than that of other occupiers. The real problem is political and strategic-the occupation-and not the specific application or abuse by Israel of laws in the territories.
Except for the settlement issue. This is where international rule of law meets Israeli rule of law. True, the way things are going the state created on the land vacated by the settlers is liable to be a lawless Palestine. But a non-democratic Israel-incapable of disentangling itself from a huge Palestinian population yet denying the Palestinians basic rights-will by definition be a lawless Israel.- Published 9/8/2004 (c) bitterlemons.org
Yossi Alpher is coeditor of bitterlemons.org and bitterlemons-international.org. He is a former director of the Jaffee Center for Strategic Studies at Tel Aviv University and a former senior adviser to PM Ehud Barak.
It is perhaps an irony that the party in this conflict with, relatively speaking, weak law and order enforcement structure is very much dependent on and hopeful of international law, while the party so proud of its internal legal and judiciary structure consistently undermines and disregards international legality.
Theoretically speaking there should be a strong connection between the strength of internal legal structures and respect for international law, because there should be no contradiction between any law in any specific country and international law. Indeed, if there is a legal ruling in any country that contradicts international law, legally speaking, international law ought to be the dominant.
Israel has always made special efforts to impart the impression, first to Israelis and second to the international community, especially western democracies, that it is a democratic and lawful society and polity. This is one of the ways in which Israel identifies as part of western civilization. The fact that Israel has mostly been in contradiction with specific stipulations of international law and certain United Nations Security Council resolutions probably plays a part in this.
Israel has been at odds with international law in several ways. Internally, it treats one-fifth of its own citizens, the Palestinians of Israel, with obvious racial discrimination. Israel, in this regard, also publicly presents an attitude in violation of its citizens' rights and international law when it calls for the necessity of preserving the pureness of a specific race inside Israel.
Israel is also in consistent violation of the Fourth Geneva Convention, which regulates relations between an occupying power and the people under occupation. Occupied Palestinian land, belonging to individuals or peasants who still carry the deeds, has been confiscated to settle Israel's own civilian population. Recently, the Israel High Court's approval in principle of Israel's separation wall, despite quibbles about details, is in direct opposition to the legal opinion of the International Court of Justice.
It would be difficult to count all the violations of the Israeli occupation, but they are well documented and usually systematically presented, not only by relevant UN agencies or other international humanitarian agencies, but sometimes even by Israeli groups and organizations that oppose such illegality, e.g. B'Tselem.
In Palestine, things are completely different. The Palestinian people and leadership have always been keen to base their positions and claims and modify them in accordance with international law. If anybody wants to know what exactly the ultimate objective of the Palestinian people's struggle is, the answer will be a complete adherence to and implementation of the relevant resolutions of the Security Council and the relevant stipulations of international law.
And yet, the Palestinian people and their Authority, who succeeded in moving ahead with many reforms, including in the financial and civil service spheres, have unfortunately made little progress in improving their judiciary system and enforcing law and order.
Part of this can rightly be blamed on the Israeli interruption of the move from limited self-rule in part of the occupied territories into a full fledged independent and sovereign state on all the Palestinian territories, which took place immediately after the collapse of final status negotiations and the return to violent confrontation and reoccupation.
A solution to the conflict might come from efforts to modify the legal systems of the two sides whereby each will be in harmony with the relevant aspects and components of international law. The Palestinian Authority will do its people great favor if it improves the judiciary system in order to live up to the standards of international law. And the Israelis will contribute significantly to ending this conflict if they modify their legal mentality and system so as to fall into line with international law and the relevant Security Council resolutions.-Published 9/8/2004 (c) bitterlemons.org
Ghassan Khatib is coeditor of bitterlemons.org and bitterlemons-international.org. He is the Palestinian Authority minister of labor and has been a political analyst and media contact for many years.
The rule of law is a core need of every state. When most people living in a state accept the rule of law, they generally live in peace with each other; all except for the criminal fringe, who scorn the law, and upon whom the state seeks to impose criminal law. When a state fails to impose the rule of law on all groups and clans, including independent armed organizations, the state veers toward chaos and pervasive human misery.
Such for example, is the condition in several African states that over the decades since independence failed to develop the rule of law. Such is also the condition of Iraq, liberated from the rule of a cruel despot yet unable to establish a state with the rule of law.
Such also is the tragic path onto which Yasser Arafat has led the Palestinian people since his return after the Oslo agreements. Instead of seeking to develop a state with the rule of law, a state in which only state organizations carry weapons, he preferred to let existing groups, including armed groups, act as they wish. Moreover he failed to establish an independent judicial system, thus subjecting the courts of justice to the whims of politicians. The result is that externally the Palestinian Authority is fast losing international credibility as an effective partner in the peace process, and internally there is increasing chaos, as different organizations and clans use violence against their opponents.
What about Israel? When Israel was established Prime Minister David Ben Gurion said the rule of law was vital for the survival of the state. After the IDF (Israel Defense Forces) was created he ordered the dismantling of all other armed organizations, such as the Palmach, Etzel (Irgun) and Lehi. From the start, the judicial system was independent and since the first years of Israel it has made many key decisions that were not necessarily in accord with the government line.
Tragically, the continued occupation of Palestinian territory by Israel has gradually undermined the rule of law as a core Israeli value. Primarily this happens in the occupied territories, where dozens of settlements were established regardless of any law and where groups of settlers use deliberate violence against the Palestinians and against their property. Also the IDF, which is obliged to fight against potential murderers of Jews, often kills, harms and humiliates many innocent Palestinians, including women and children. Inside Israel, the courts of justice still make independent decisions, such as the recent High Court decision obliging the government to draw back parts of the separation fence now being constructed. Nevertheless there is a continued increase in the number of cases where the rule of law is completely ignored, as in the growing number of illegal links between capitalism and government.
This double tragedy between Israel and the Palestinians does not bode well for peace. Without the effective rule of law on both sides, there can be no effective peace process. And the absence of a peace process will further undermine the rule of law on both sides.- Published 9/8/2004 (c) bitterlemons.org
Alouph Hareven served in the Israeli intelligence community and the Foreign Ministry, was a senior fellow at the Van Leer Jerusalem Institute, and with an Arab colleague was a cofounder of Sikkuy, the Association for the Advancement of Civic Equality.
bitterlemons: How serious do you feel the breakdown of law and order we seem to be seeing around us is at the moment?
Abu Amr: I don't think this issue should be exaggerated. What has happened so far was easy to contain, for the time being. I think what happened was an alarm for the Palestinian Authority and Palestinians in general to take care of a large number of accumulating problems. It was a warning to people to turn their attention to tackling these problems before they explode in our faces once again, perhaps in a more serious way.
But I would not suggest that Palestinian society is on the verge of collapse. This is not the first time Palestinian society confronts this type of problem. There is the continuation of the Israeli occupation, military incursions and the siege, and despite all these problems, Palestinian society has demonstrated a great deal of resilience.
bitterlemons: You talk of this as a warning to the PA. A warning to do what?
Abu Amr: It's a warning that unless we turn our attention to fix the Palestinian order in its entirety, in terms of political, security, administrative, and legal reform, we may face problems similar to the ones that we have encountered recently, illustrated in the state of lawlessness and certain violations of the rule of law, even political violence, that resulted in confrontations and the burning of PA or security institutions, etc.
bitterlemons: Particularly from the international community you often hear the demand that the PA should assert itself to set its house in order. To what extent is this possible, while Israel continues its military incursion and checkpoints, etc?
Abu Amr: The Israeli measures against the Palestinian people and the Authority, and the siege on the Palestinian president, the restriction of movement and the continued incursions and assassinations, make it extremely difficult for people to focus on fixing their internal situation. However, there are things that are within reach and that could and should be done. Of course, nobody is demanding that the PA do things beyond its means, we understand this and the reason we want to fix our internal situation is because doing so will make the Palestinian people more immune vis-a-vis the Israeli aggression and the state of siege.
bitterlemons: Do you feel there is any significance in the news that the police will now be able to carry arms again?
Abu Amr: Well, the preliminary, modest and partial deployment of the Palestinian police force is significant from the political, psychological and security point of view, i.e., that the tools of law and order are back in Palestinian cities and villages. This is a good step, but I think the success of this depends very much on the Israelis, whether they will allow this modest step to succeed or not, whether they want to enable the Palestinian police to reassert itself, which also means a reassertion of the PA. It won't succeed unless the Israelis are serious in enabling them to undertake renewed responsibilities in maintaining law and order in the Palestinian areas.
bitterlemons: Isn't there a danger that the police will be seen as Israeli proxies?
Abu Amr: I don't think so. They will not receive orders from the Israelis. Of course the Israelis will impose a number of restrictions on the mandate, movement and work of the police, but these men will be receiving their orders from the Palestinian leadership.
bitterlemons: You mentioned judicial reform. How important is this and what exactly is needed? Are we talking about the ratification of the constitution, or where are we going from here?
Abu Amr: I think the reason we are seeing all these problems is because the separation of powers has not yet been established in the PA. If there was separation of powers of the legislative, executive and judiciary, and if there was independence of the judiciary, we wouldn't have seen these kinds of problems. That's why judiciary reform is necessary, to get a separation of powers and also in terms of having specific job descriptions for the people who work in the judiciary.
bitterlemons: And are you optimistic that such reform will take place in the near future?
Abu Amr: I'm not sure. This has been a standing problem for a long time and I have no reason to believe that it will be solved tomorrow. I hope it will, but I'm kind of skeptical.
bitterlemons: Yet you feel it is one the elements that need to be solved in order to avoid a repeat of recent events?
Abu Amr: Well, this is the mechanism to take care of the state of law and order and due process in our society. I think that without a reformed, effective and independent judiciary nothing can be fixed in the Palestinian situation and violations of the rule of law will continue. So this is one of the main pillars in reforming the Palestinian order.-Published 9/8/2004 (c) bitterlemons.org
Ziad Abu Amr is a member of the Palestinian Legislative Council (PLC) for Gaza City and the head of the PLC's Political Committee.
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