State Violence and Human Rights

State Officials in the South

Steffen Jensen, Andrew Jefferson

• Publisher: Routledge-Cavendish
• Year: 2009
• ISBN:
  9781134021598
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

State Violence and Human Rights addresses how legal practices – rooted in global human rights discourse or local demands – take hold in societies where issues of state violence remain to be resolved. Attempts to make societies accountable to human rights norms regularly draw on international legal conventions governing state conduct. As such, interventions tend to be based on inherently normative assumptions about conflict, justice, rights and law, and so often fail to take into consideration the reality of local circumstances, and in particular of state institutions and their structures of authority. Against the grain of these analyses, State Violence and Human Rights takes as its point of departure the fact that law and authority are contested. Grounded in the recognition that concepts of rights and legal practices are not fixed, the contributors to this volume address their contestation 'in situ'; as they focus on the everyday practices of state officials, non-state authorities and reformers. Addressing how state representatives – the police officer, the prison officer, the ex-combatant militia member, the hangman and the traditional leader – have to negotiate the tensions between international legal imperatives, the expectations of donors, the demands of institutions, as well as their own interests, this volume thus explores how legal discourses are translated from policy into everyday practice.

Chapter 1
The politics of Palestinian legal reform

Judicial independence and accountability under occupation¹

Tobias Kelly

Following the start of the Oslo Peace Process in the 1990s and the creation of the Palestinian National Authority (PNA), Palestinian politics has been marked by the often arbitrary and violent exercise of power. Although greeted with initial euphoria in many European and American capitals, there was an almost immediate disenchantment among many Palestinians with the Peace Process. In this context, Yasser Arafat, as the head of the newly created PNA, tried to limit opposition through a careful balance between the distribution of resources and harsh coercive measures. This saw a huge growth in the number of people employed by the Palestinian civil service, the vast majority of whom held affiliation with Arafat’s Fatah movement. Pressure from Israel and the USA to crack down on Hamas contributed to making the security forces the most prominent aspect of the PNA, and they were frequently used in widescale detention of Palestinians opposed to the Peace Process. Alongside attempts to limit opposition, Arafat was faced with the task of establishing control of the Palestinian Territories after having spent decades in exile. In particular, he tried to retrieve control from the decentralized and institutional forms of politics that had developed in the West Bank and Gaza Strip prior to the PNA, through the simultaneous promotion of patron-client relations and political centralization (Robinson 1997). A combination of weak legitimacy due to the failures of the Peace Process, a powerful security service, an attempt to sideline grassroots activists and the ability to use the language of revolutionary nationalism all resulted in a situation where the PNA ruled through a mixture of authoritarianism and personalism, rather than legal institutions. The USA, Israel and many European states initially encouraged Arafat in his use of coercive measures against the Palestinian population. However, following the start of the second intifada (uprising) in late September 2000 and the collapse of the Oslo Peace Process, the creation of an independent Palestinian judiciary came to be seen as a key factor in the attempts of international donors to produce a more stable and accountable PNA.

Promotion of the ‘rule of law’ is widely seen as a key component of transitional reform in many ‘post-authoritarian’ or ‘post-conflict’ regimes. In particular, the judiciary is perceived as playing a central role in the consolidation of democracy through the constraint of arbitrary state action and the promotion of accountability in the face of patron–client relationships. Indeed, Garth and Dezaley have claimed that there are ‘few aspects of governance on which there are more consensus than the need to establish an objective, efficient and reliable judicial system’ (Garth and Dezaley 2002:220). Promoting the ‘rule of law’ is attractive to international donors, as it seems to offer a way to transform the coercive politics of ‘transitional regimes’ into technical forms of governance. Yet, despite its near-ubiquity in legal reform processes, the precise meanings of judicial independence remain notoriously vague. As Shapiro famously argued, ‘what we customarily label judicial independence has typically involved paradox, conflict, ambiguity and unresolved tension’ (Shapiro 1981:66). In practice, it is doubtful whether even the regimes normally held up as exemplary models, such as those in northern Europe or America, can stand up to any ideal model of judicial independence. Resolution of the tensions within the notion of judicial independence is therefore not an issue of normative clarity, but rather of a contested politics. Crucially, however, the concept of judicial independence should not be treated as a mask that hides the true nature of the political process, as its claims have an undoubted normative impact and attraction. In this light, an independent judiciary is not a universal template that can be applied in all contexts, but an emergent process that always takes shape within specific historical conditions.

At its heart, an independent judiciary is an issue of accountability (O’Donnell 1998). At the broadest level, it holds out the promise of constraining the arbitrary and discriminatory exercise of power. Beyond this principle, however, important questions remain unanswered. At one level, if judges are supposed to hold politicians accountable, who can hold judges to account? Is ensuring judicial independence a matter of building walls around the judiciary, or is it an issue of checks and balances? At another level, judicial independence itself stands alongside a variety of alternative forms of accountability, not least the popular accountability promised by democracy. There is often a tension between the ‘will of the people’ and the decisions of judges. The outcome of such struggles between different notions of accountability has important implications for the distribution of resources. As such, rather than take judicial independence for granted as neutral and self-evident, we need to ask how specific processes come to carry the ‘stamp of accountability’ (Strathern 2000). The promotion of an independent judiciary forces us to ask: Who is being held accountable, to whom and in what ways?

This chapter explores the history of attempts to promote judicial independence in the Palestinian Territories. In doing so, it argues that an independent judiciary has not simply offered a technical way to reform the rough and tumble of Palestinian politics, but has implied a politics of its own. This politics may only be understood if we, in line with the introduction to this volume, pay particular attention to the motives and practices of those engaged in political struggles, be they Palestinians, Israelis, donors or major geo-political players. The notion of judicial independence has a great deal of salience for many Palestinians, fed up with years of PNA corruption, and holds out the promise of holding the PNA accountable to the principles of equality and due process. However, senior judges have largely seen judicial independence as a means through which to buttress their control over the allocation of jobs and administrative resources. For their part, the international donor community has seen the creation of an independent judiciary mainly as a way to sideline awkward elements of the Palestinian political leadership, as they have sought to maintain their own vision of the Oslo Peace Process. Far from being part of a neutral process of legal reform, attempts to encourage judicial independence have therefore served to promote specific political goals of international donors and Palestinian judges. However, in this process, the claim that judicial independence is a technical issue has also meant that judicial reform projects have tended to ignore the ways that effective judiciaries need to be rooted in political power. Without coercive backing, legal decisions are made in a vacuum. As such, the aspiration of holding the arbitrary exercise of power in check is left to one side. The chapter begins with a brief history of the challenges facing the Palestinian judiciary and the internal Palestinian and international donor attempts at legal reform that these have produced. It then moves on to explore the conflicts within the PNA over the issue of judicial independence. A caveat is perhaps necessary at this stage. This chapter focuses on events between 1993 and 2006, before the election of Hamas. The period since the electoral victory of Hamas has seen important developments in the area, which are not discussed here in detail.

A brief history of the Palestinian judiciary

Conflicts over judicial independence in the West Bank and Gaza Strip should be understood in the context of the history of the Palestinian legal system. After the creation of the state of Israel in 1948, the Palestinian judiciary was confined to the West Bank and Gaza Strip, with each area developing along different legal and political lines. The West Bank was incorporated into the Hashemite Kingdom of Jordan, and the result was a gradual move towards a continental style of civil law. The Jordanian High Judiciary Council (HJC) was made responsible for the administration, appointment and disciplining of judges, overseen by the Jordanian Ministry of Justice. After 1948, the Gaza Strip was administered by Egypt, and the existing Mandate Common-Law-based legal system was largely kept in place. Judges retained their positions and enjoyed broad autonomy, including the ability to void administrative orders that conflicted with legislation. Crucially for later developments, judges in the Gaza Strip had more autonomy than those operating in the West Bank.

Following the 1967 Israeli occupation, both the West Bank and Gaza Strip fell under the control of the Israeli military. The Israeli Military Governor proclaimed control over all legislative, executive and judicial powers in the occupied territories (Shehadeh 1988). The Jordanian HJC and Ministry of Justice no longer reached the West Bank, and their powers were taken over by an officer-in-charge of the judiciary, appointed by the Israeli Military Governor. Judges, in effect, became employees of the Israeli military. As the Supreme Court was now cut off in Jordan, the Court of Appeals, which was moved to Ramallah, became the highest court in the West Bank. In the Gaza Strip, the Israeli Military Governor maintained the existing court system, but took similar supervisory and executive powers to those in the West Bank. However, in contrast to the West Bank, the Gazan Supreme Court remained relatively unimpaired.

Alongside the ordinary courts in the West Bank and Gaza Strip, the Israeli Military Governor also set up his own military courts (Hajjar 2005). These courts, based on British Mandate era legislation, were initially designed to hear ‘security’ related issues, but gradually began to eat into the jurisdiction of the ordinary courts. Furthermore, prior to 1967, the West Bank courts had power over all persons within the territory. However, following the 1967 occupation, Israeli citizens could move freely in the West Bank and Gaza Strip, and rather than being placed under the jurisdiction of West Bank or Gaza courts, they were put under the authority of Israeli courts. Many West Bank lawyers responded to Israeli occupation by going on strike, which was to continue in various forms until the 1990s. The West Bank courts were also hit by a number of corruption scandals in the 1980s, with judges being accused of accepting bribes. The intifada, which started in the winter of 1988, resulted in further problems for the Palestinian courts, as there was a renewed strike by lawyers and a mass resignation of police officers. The leadership of the intifada also instructed people to boycott the West Bank and Gaza courts in favour of nationalist-orientated informal tribunals.

Following 1967, then, the West Bank and Gaza judiciary were undermined by a combination of Israeli interference and Palestinian boycott, which left them mistrusted and marginalized. According to one commentator, the local courts were quickly reduced to courts for ‘petty disputes amongst Arabs’ (Bisharat 1989:126). It was against this background that the Oslo Accords were signed in 1993. The Oslo Accords gave the PNA responsibility for the West Bank and Gaza courts and jurisdiction over Palestinians, but not Israeli identity card holders. The Declaration of Principles, which is the foundation of the Oslo Accords, declared the necessity of establishing ‘independent Palestinian judicial organs’ and the Oslo II Interim Agreement gave the PNA responsibility for the administration of justice. However, although the Oslo Accords declared the need for an independent Palestinian judiciary, it left the exact relationship between the judiciary and the new PNA executive ambiguous, with important implications for the struggles over judicial independence that would follow.

The courts under the PNA

Following the creation of the PNA in 1994, the establishment of an independent Palestinian judiciary faced several practical challenges in terms of training, resources and political interference. To begin with, there was no professional legal training, and most lawyers had been trained in various law schools around the Arab world. As a result, lawyers and judges often had very different interpretations of the law.² There was also a widespread shortage of judges and extensive delays in the courts, with cases taking years to be processed. Furthermore, the physical infrastructure of the courts was decaying due to decades of underinvestment. Court buildings were shabby and crowded, and judges widely felt that they were underpaid. Finally, the ordinary judiciary also had to compete with a system of PNA security courts, based on the same laws that the Israeli military had used to establish their own system of military rule. The formal role of these was to review cases relating to the internal and external security of the PNA. These courts were entirely separate from the ordinary courts, having their own prosecutors and judges made up largely of security officers. Throughout the mid-1990s, the PNA security forces carried out large-scale arrests of opponents to the Oslo Peace Process, who were often tried in these state security courts. These trials were widely criticized by human rights organizations for deficiencies in due process as defendants had limited access to lawyers and trials often lasted a matter of hours.

On several occasions throughout the 1990s, the Palestinian courts came into direct conflict with the PNA, in particular, the PNA security forces. According to one estimate, of the 77 cases that came before the Palestinian High Court between 1997 and 2000 concerning habeas corpus, the court ordered the release of the detainee in 73 cases.³ In 1997, the Chief Justice of the West Bank was forced to resign after he ordered the release of a number of university students detained by the PNA security services. However, despite this pressure, the judiciary still continued to pass judgements that were highly critical of the PNA and its security forces. Most famously, in 2002, the High Court ordered the release of Ahmed Sadaat, the head of the Popular Front for the Liberation of Palestine (PFLP). Sadaat had been accused by the Israeli government of being behind the assassination of a former Israeli cabinet minister, Rehavem Zeevi. Under a deal brokered between the PNA, Israel and the USA, Sadaat was detained, under the supervision of US and British guards, in a prison in the Palestine-controlled town of Jericho. The Palestinian High Court ordered his release, declaring that Sadaat was being detained unlawfully. However, this ruling was ignored by the Palestinian security forces. The Minister of Justice, and later the Prime Minister’s Office, refused to authorize Sadaat’s release, saying that he was being held ‘for his own protection’.⁴ This was far from an isolated incident; in fact, according to the former Deputy Attorney General for the West Bank, there were 33,937 unenforced judgements in the West Bank by 2001.⁵ Thus, although the Palestinian courts were often critical of the PNA security forces, their decisions were often ignored.

In sum, the Palestinian judiciary faced numerous difficulties. The courts had been sidelined for decades by both the Israeli military and the Palestinian national movement; Palestinian lawyers and judges had backgrounds in disparate legal traditions; there were extensive delays in the courts and they had limited jurisdiction over the people who lived and worked in the West Bank and Gaza Strip. Furthermore, the jurisdiction of the ordinary courts was increasingly eaten into by the state security courts, and although the High Court often issued rulings that were deeply critical of the PNA, these decisions were often overridden.

The Palestinian reform agenda

Following the creation of the PNA, there has been a great deal of internal Palestinian criticism of its failure to respect the ‘rule of law’. According to one opinion poll, ‘equality before the law’ was seen as the greatest priority for the PNA by almost three-quarters of all Palestinians (Birzeit University Development Studies Programme 2000:3). Much of the formal criticism of the PNA for its failure to respect the ‘rule of law’ came from Palestinian Legislative Council (PLC) members. Hamas based its platform on the need to combat corruption in the PNA. There were also several quasi-governmental and non-governmental organizations (NGOs) that lobbied for legal reform. The PNA had itself established a human rights ombudsman, known as the Palestinian Independent Commission on Citizens’ Rights (PICCR). In addition, there were numerous human rights and democracy NGOs that were critical of the PNA’s performance. In this context, legislators within the PLC from both Fatah and the small leftist parties, as well as human rights NGOs, lobbied for the passing of a Basic Law to act as the effective constitution of the PNA, and a Judicial Authority Law that would set out the conditions of judicial independence.

Such attempts to hold the PNA to account were a new direction for the Palestinian NGO movement, which had expanded rapidly in the 1980s in order to campaign against the Israeli occupation. Criticism of the PNA, rather than the Israeli military, was highly controversial (Hajjar 2002). Furthermore, whereas the Palestinian NGO movement had historically claimed to represent the Palestinian ‘grass roots’, there were now accusations from officials in the PNA that it was becoming professionalized and divorced from everyday needs and concerns (Hanafi and Tabar 2005). Many of the NGOs were accused of being the personal fiefdoms of their heads, and despite their focus on PNA corruption, there were also accusations of corruption within the NGO movement itself. The organization named LAW, which was one of the biggest critics of the PNA and was favoured by many international donors, was forced to close down after its head was accused of misappropriating funds. This corruption scandal took place in a context where much of the Palestinian NGO sector was heavily dependent on the support of foreign donors, mainly European or American. Controversy over the influence of the international donor community reached a head in 1999, following a UN report that highlighted the role of NGOs in pushing for the rule of law under the PNA (UNSCO 1999). The report was met with a virulent response from within the PNA: the Minister of Justice accused human rights organizations of ‘being stooges of foreign backers’ and claimed that ‘their directors received salaries of more than US$10,000, equivalent to the salaries of ten judges’ (Hammami 2000:18). As a result, the push for an independent judiciary had to walk a fine line between criticism of the PNA and the appearance that it was following personal or ‘foreign’ agendas.

Donors, diplomacy and reform

Ironically, for much of the 1990s legal reform was not on the agenda of many donors. Concerns over the ‘rule of law’ were largely ignored in the interest of building a strong PNA under Yasser Arafat. Although there was limited support for the drafting of new laws, as well as for various Palestinian NGOs focused on human rights and democracy promotion, the major concern was strengthening the capacity of the PNA to enforce the Oslo Accords. The USA, in particular, encouraged the PNA to take harsh measures against opponents of the Oslo Peace Process and people accused of attacks on Israelis targets. One of t...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgements
• Introduction: repopulating state violence and human rights
• 1 The politics of Palestinian legal reform: judicial independence and accountability under occupation
• 2 Traditional authority and localization of state law: the intricacies of boundary marking in policing rural Mozambique
• 3 The vision of the state: audiences, enchantments and policing in South Africa
• 4 Translating human rights in the margins: a police–migrant encounter in Johannesburg
• 5 The Special Field Force and Namibian ex-combatant ‘reintegration’
• 6 On hangings and the dubious embodiment of statehood in Nigerian prisons
• 7 Taking the snake out of the basket: Indian prison warders’ opposition to human rights reform
• 8 Community policing programmes as police human rights strategies in Costa Rica
• 9 Commentary: the piggy-in-the-middle
• Bibliography