Israel's Legitimacy Above Palestine's

by Dr. Abdul-Sattar Kassem

Ever since the establishment of the Palestinian Authority in 1994, there have been those seeking a Palestinian law and working to have it applied. The beginning was not easy, and it was not possible to write a law overnight; time had to pass before it became possible to give attention to the institutional process of drafting law and establishing the appropriate institutions responsible for formulating a basic law and the subsidiary laws branching from it to regulate the various affairs of life. In 1994 the Palestinian people in the West Bank and Gaza Strip entered a transitional phase, and, as is the case with every nation, this phase was marked by hesitation, doubt, lack of clarity of vision, and passage through numerous trials between right and wrong.

The election of the Legislative Council in 1996 marked the beginning of building the institutions of a responsible official authority concerned with regulating public legislative affairs, and attentive to the pressing needs for closing legal gaps that would make citizens’ daily lives easier and more manageable. But matters did not proceed according to professional standards, and the Legislative Council did not make the efforts required of it, whether due to internal shortcomings or to pressures from outside it.

Priority for Implementing Oslo

In practical terms, the priority — then and still now — has been the implementation of the Oslo Accord and the details that branched from it, particularly the interim Cairo Agreement of 1994 and the Taba Agreement of 1995. Under the agreements, the Palestinian Authority remains under continuous testing by Israel and the United States, and it must demonstrate commitment to the agreements in practice if it wants its powers to expand and the required funds to flow from the donor states. This means that Oslo and its consequences take precedence over every internal Palestinian legal consideration, and that the Authority’s continuation is tied to the extent of its response to the demands imposed on it, security demands foremost among them.

This explains in part, though not entirely, the hesitation of the president of the Palestinian Authority in ratifying the many draft laws submitted to him by the Legislative Council. He first had to scrutinize whether a given bill was consistent with Oslo, or at least did not contradict it, and to make sure it did not diminish his monopoly over authority. The Legislative Council never challenged the president of the Authority, and continued instead to search for justifications for its own impotence — even though the president of the Authority enjoyed a majority’s support within the Council, and no one expected a war to break out over legal institution-building.

To this day, the Palestinian Authority continues to override Palestinian law in favor of the Oslo Accord. For example, after Oslo it used to arrest people and hold them in prison for long periods in order to demonstrate its security pursuit of Palestinian resistance fighters, or of those suspected of intending to resist in one way or another, and it still arrests people and holds them in prison without any Palestinian legal justification. Yet we usually hear praise from Israel and the United States for such measures, and demands upon the Authority to do more. Westerners, generally, feel no shame in affirming that the continued payment of Palestinian employees’ salaries is tied to the extent of the Palestinian Authority’s fight against what is called terrorism. Matters have been arranged, by the West and by Israel, in such a way as to make the Palestinian accept a loaf of bread whose price is the suffering and pain of his fellow countrymen, without insisting on a law that guarantees the unity of the people.

Traditions of Legal Overreach

Overriding laws and charters has been a tradition on the Palestinian scene both before and after the establishment of the Palestinian Authority. The chairman of the Palestine Liberation Organization did not respect the Palestinian National Charter, and the institutions of the PLO did not respect themselves or the covenants they had bound themselves to. For example, in 1970 the PLO issued a peaceful-solution initiative calling for the establishment of a secular democratic state in Palestine encompassing followers of all the divine religions, even though the Palestinian National Charter calls for restoring the population balance in Palestine to what it had been before the Zionist invasion. In 1983, Arafat visited Egypt even though the resolutions of the Palestinian National Council had tied any progress in relations with Egypt to Egypt’s distancing itself from the Camp David Accords.

The Palestinian National Council itself, at its 1988 session held in Algiers, adopted resolutions that overrode the Charter, chief among them acceptance of General Assembly Resolution 181 and acceptance of Security Council Resolutions 242 and 338. Legally, the Council should have first amended its Charter, but it chose to override it instead. This is why Arafat found no difficulty in signing the Oslo Accord and proceeding to implement it before the Palestinian National Council had even ruled on the matter; and the members of the National Council, for their part, did not care, and made no attempt to defend the Council’s powers.

Under the Palestinian Authority, presidential and parliamentary elections were supposed to be held in 1999, but presidential elections did not take place until after Arafat’s death, and Legislative Council elections did not take place until 2006. The Legislative Council elected in 1996 continued its unlawful tenure for six years, with no concern whatsoever for the importance of law in the history of peoples.

Palestinian Legitimacy

Tracing Palestinian history since 1967, it is difficult to say that there existed a Palestinian legitimacy separate from personal and external dimensions. There were glimpses of legitimacy at the level of the PLO — seasonal glimpses, in particular, that the leadership of the PLO, Arafat specifically, saw as a necessity for himself. For example, the Palestinian National Council was invited to convene in Amman in 1984 for political necessities related to internal conflicts within Fatah, and the chairman of the Organization found it useful to shelter behind the “legitimacy” of the PLO in confronting his rivals. He did the same when the Palestinian National Council was invited to convene in 1988 in order to dissolve the taboos. And under the Palestinian Authority, Arafat invited the Palestinian National Council to convene to shoulder the burden of amending the Palestinian National Charter according to Israeli and Western wishes.

The composition of the Palestinian National Council was never, over time, subject to precise, professional standards, and the chairman of the Organization worked to intervene in its membership in a way that guaranteed him a continuous majority. He was careful to ensure that most of its members were supporters of his who would not object to his overreach, and he was careful never to convene it except in circumstances he himself deemed suitable. The Council, together with the Organization’s Executive Committee and the Central Council, remained nothing more than personal tools in the hands of the chairman of the Organization.

The Organization’s Executive Committee did not abide by the written internal regulations and instructions governing its own work and the work of both the National Council and the Central Council. Reviewing this matter, we find that all the Organization’s bodies and councils lack legitimacy, and have no right to meet, deliberate, or take decisions as official bodies representing the Palestinian people. We have recently observed, following Hamas’s victory in the legislative elections, how desperate attempts were made by the president of the Palestinian Authority and his aides to revive the PLO as the sole source of legitimacy on the Palestinian scene, in order to strip the Palestinian Legislative Council of its legitimacy. The Organization had been sitting on a forgotten shelf, and suddenly it was transformed into a young woman deserving of embrace and care.

It is also clear that this manipulation of the question of legitimacy on the Palestinian scene is being encouraged by external forces whose only goal is to implement the Oslo Accord and its consequences and achieve a final settlement with Israel. Following the establishment of the Palestinian Authority, the external side became active in searching for ways to preserve the strength and influence of those who support negotiations with Israel, and the necessary financial, media, and security support was provided so that the Palestinian Authority would continue to march in step with the external camp, even at the expense of Palestinian national unity. For example, after Hamas’s victory, Arab states declared that they recognized only the PLO’s representation, while other states called on Hamas to commit to the Palestinian legitimacy represented by the PLO.

Here I mention the Palestinian Revolutionary Judiciary as a glaring demonstration of the deceit of the Organization’s leaders. Following Hamas’s takeover of the Gaza Strip, the Palestinian presidency decided to put a number of second-tier Fatah officers on trial on charges of fleeing the battlefield. A military court was indeed formed in Jericho under the PLO’s 1979 Revolutionary Judiciary Law, and eight Fatah officers were put on trial. This law suddenly surfaced, and became a legitimate tool ready for use. Had this law actually been applied, the leaders of the Palestinian Authority, foremost among them Mahmoud Abbas, would have received several death sentences by firing squad. (I invite the reader to consult the law.)

Legitimacy Within the Palestinian Authority

Legitimacy in any state is supposed to be embodied in the presidency, the legislative council, and the government, under judicial oversight, with these bodies operating according to dynamic interactions that respect one another’s powers in order to guarantee a legitimate flow that prevents the country from falling into internal strife or overlapping conflicts. The Palestinian Authority, though it does not rise to the level of a state, is likewise supposed not to deviate from this rule, in order to guarantee a proper flow, define responsibilities, and push toward construction and progress. The president of the Palestinian Authority is elected and is part of its legitimacy, as is the Legislative Council; the government, for its part, emerges from a legitimate body and works to protect legitimacy according to constitutional rules. And there is supposed to be an independent judiciary that monitors, opens its doors to appeals, and issues judicial rulings consistent with the requirements of legitimacy.

These foundations were not adhered to within the Palestinian Authority under Arafat, nor after Hamas’s victory in the Legislative Council. It was flagrantly striking that the Legislative Council, whose term had expired, convened immediately after Hamas’s victory and transferred some of the Legislative Council’s own special powers to the Palestinian presidency. The affiliation of security apparatuses was transferred from the government to the presidency, control over the broadcasting and television institution was transferred from the government to the presidency, and thousands of people were appointed to positions with no clearly defined function. It was clear in all of this that the intention was fully set on undermining the foundations of legitimacy defined by the Palestinian Basic Law.

Here I note that my own conviction is that there is no Palestinian legitimacy alongside Oslo, and that the “legitimacy” I speak of here is the legitimacy of an illegitimate phase.

The careful observer will note that the powers stripped from the government expected to be formed by Hamas are the very same powers stripped from Arafat when the Americans decided that they wanted Mahmoud Abbas as prime minister. The Americans established a premiership, decided who it would belong to, and decided which powers it must hold, in order to ease the fulfillment of Israeli security requirements from the Palestinian Authority. In practical terms, the Americans appear to hold the final word on legitimacy — and certainly not without the Israelis being present on the stage as well. These powers were later returned to the Palestinian presidency because Hamas would not carry out American-Israeli will.

Immediately, politicians and the media set to work on the question of Palestinian legitimacy, affirming that the PLO is its sole source, and that the Palestinian presidency is the true embodiment of the PLO’s will. In other words, legitimacy is confined solely to the Palestinian presidency, and nothing else represents legitimacy. The goal is clear: to strip legitimacy from the Palestinian Legislative Council, which Hamas controls, and to expel the movement from the circle of legitimacy. In other words, there was a clear decision not to recognize the results of the Palestinian elections, and to take various steps to restore matters to the full control of the supporters of Oslo and its consequences.

Recognizing Israel as the Basis of Legitimacy

Arafat always worked to cover his overreach of the PLO’s legitimate frameworks with multiple justifications, and he most often proceeded with his policies on the strength of the fait accompli, and on the strength of his financial capacity to buy the loyalty of the leaders of the Palestinian factions. His transgressions did not stir much controversy on the Palestinian scene except among a few national intellectuals with experience in national work. Even after the establishment of the Palestinian Authority, he remained capable of neutralizing the factions and pursuing his policies in isolation from legal frameworks. It seems his rivals learned from him, granting powers to others before his very eyes while he was still alive. America was able to impose a finance minister on Arafat and strip a great deal of money from his hands, and to impose on the Palestinian Authority the adoption of the Road Map, which included establishing a Palestinian premiership to serve as an alternative to the Palestinian presidency that Arafat held. In the very same way Arafat operated — above the law, beneath it, and behind it — the Americans handed a great many powers to Abbas; and just as Arafat used money to leap over legitimate frameworks, America used money to impose the legitimacy it deemed appropriate.

[…] ministers, the threat of storming the headquarters of the Legislative Council, and unleashing thugs to do further harm to citizens, and so on. It was clear that the champions of Oslo, together with the external forces backing them, did not accept the election results, and were prepared to do everything possible to bring down the legitimacy of the Legislative Council.

The champions of Oslo focused on the question of legitimacy by arguing that Palestinian legitimacy, as I have said, derives solely from the PLO, and that the Palestinian presidency under Abbas alone represents legitimacy. It was clear from this that there was a rejection of the legitimacy of the Legislative Council, and that the Council — even though its members were elected — was not part of Palestinian legitimacy, and that it had to submit to the PLO if its members wanted their council to enjoy legitimacy. In other words, the implicit message was that anyone who wants to enjoy legitimacy on the Palestinian scene must accept the agreements signed with Israel, and ultimately accept recognition of Israel. This was not left unspoken: Abbas repeatedly declared, as did many Fatah leaders, that Hamas must recognize the signed agreements. But they did not publicly demand that Hamas recognize Israel.

Israel did not stand by as a mere spectator, arms folded; it worked openly, side by side with the supporters of the Palestinian presidency, to pressure Hamas. In addition to its effective role in the financial siege and its withholding of the customs revenues owed on imported goods, it arrested members of the Palestinian Legislative Council affiliated with Hamas, and pursued ministers, throwing them into prison.

This confirms what I began this article by saying: that the Oslo Accord and its consequences form the basis of legitimacy in the eyes of a considerable portion of the Palestinian people. That is, recognition of Israel has, in the end, become a vital pillar and a basic condition for acquiring legitimacy, and whoever does not recognize Israel will find himself confronting internal and external forces working to bring him down. Whoever recognizes Israel and marches in the procession of negotiation obtains money, pays the salaries of Palestinian employees, most of whom belong to the security apparatuses, and wins the approval of the Western powers, the United States foremost among them.

The Legitimacy of Abbas and His Prime Minister

If we take into account the Palestinian Basic Law and the presidential elections that were held, then Mr. Abbas is a legitimately elected president; but if we take into account the Palestinian Revolutionary Judiciary referred to above, then Abbas is illegitimate, and ought to stand before a military court of the Organization on several charges, most of which lead to the hangman’s rope or the firing squad. As for Prime Minister Fayyad and the members of his government, they enjoy no legitimacy of any kind whatsoever. There is no such thing in the Palestinian Basic Law as a permanent “caretaker government,” and there is absolutely nothing in the subsidiary laws that refers to any such thing, near or far.

The dismissed government in Gaza is likewise illegitimate, but the burden of its illegitimacy does not rest on its own shoulders — it rests on the shoulders of Mr. Abbas, who wishes to respect the legitimacy of his own election as president, while refusing to respect the legitimacy of the election of the members of the Legislative Council.

The Gaza government continues thanks to its steadfastness in the face of Palestinian, Israeli, Arab, and international pressure, while the Ramallah government continues thanks to the donor states’ money, controlled by Israel and America, and thanks to Israeli facilitation.

Gaza: A Rebel Territory

There is media talk under way now about the possibility that the president of the Palestinian Authority may declare the Gaza Strip a “rebel territory” — that is, outside the authority and will of the central government.

The concept of a rebel territory generally means that a group or community of people in a particular territory of a state has broken from the will of the central or federal authority and established an independent authority separate from the mother country. That is, the concept encompasses both the people and the land, and is not confined to a group of armed men or rebels fighting the government in valleys and on mountaintops. It follows from this that the central government mobilizes its forces and energies to restore the territory to its previous status, and to preserve the unity of the state’s territory and the unity of its population. In most cases, war becomes expected, and military operations will take their course if no peaceful solution is reached.

If the Palestinian Authority established under the Oslo Accord and its consequences were a genuine government of a sovereign state under international law, it would be legally possible to speak of a “rebel territory.” But because of the absence of a state, and because of the presence of the Israeli occupation, the general concept of a rebel territory cannot be applied to either the Gaza Strip or the West Bank.

Because of the presence of the occupation, it is logical, and lawful, for the Palestinian people to rise up in rebellion against the occupation, whether in the land occupied in ‘48 or in the West Bank and Gaza. International law grants territories under occupation the right to resist, and stands against the occupation; it is the right of the Gaza Strip and the West Bank to rebel in order to attain freedom and achieve independence. If the West Bank is under direct occupation, then the priority for its population is to rise up against the occupation and achieve independence; and if the Gaza Strip is “rebellious,” this means the Strip has broken free of the occupation’s grip. So if a person or a party wants the Strip to return from its rebellion, that person is, in effect, asking the population of the Strip to return to occupation.

Israel continuously sends its vehicles and soldiers into the villages and cities of the West Bank, and the Palestinian security apparatuses vanish from the streets the moment Israeli forces enter. Under these conditions, the Palestinian Authority manages people’s daily affairs while the occupation carries out its occupation in whatever manner serves its security requirements — meaning that the Palestinian Authority constitutes a civilian cover allowing the occupation to continue carrying out all of its measures. It is therefore logical for the Palestinian people to demand that the Palestinian Authority in Ramallah rebel, and to demand unity between Gaza and the West Bank once the occupation has been expelled. By this same logic, the Palestinian people have every right to declare the West Bank a submissive territory, or one that collaborates with the occupation.

In any case, if the Gaza Strip is declared a rebel territory by the president of the Palestinian Authority, various measures are expected to be taken to restore the Strip to the Palestinian Authority in Ramallah. The financial and economic siege on it is expected to be tightened; thousands of employees in the Strip who draw salaries from the Ramallah authority are expected, for instance, to be dismissed from their jobs; and various popular and factional sectors are expected to be incited to carry out peaceful and non-peaceful acts in order to crush the rebellion and its leaders. It is also possible that the Palestinian security apparatuses will be mobilized to fight Hamas, defeat it, and restore the unity of the territory of Palestinian self-rule.

Of all the expected measures, the only thing the Palestinian Authority in Ramallah is actually capable of doing is inciting its supporters to carry out daily activities that prevent the stabilization of civil and security conditions in the Gaza Strip, and cutting off salaries to employees who do not comply with its instructions. It is capable of making life difficult for Hamas, and manufacturing daily worries and problems to keep it continuously preoccupied. It has, of course, been doing this continuously and for some time, without achieving the success it seeks. The Palestinian Authority cannot mobilize an army, especially since its forces fled the battlefield before the battle even began, and the geographic factor poses enormous obstacles as well. Nor has the world, to this day, overlooked any means of pressure to bring down the Hamas government without using it, and I do not see the Ramallah authority possessing any more effective tools.

My assessment is that any declaration of the Gaza Strip as a rebel territory will achieve nothing, will benefit those who declare it not at all, and will not change the conditions of the Strip, which are exceedingly difficult as it is.

Legally, there is no Palestinian law that defines a rebel territory, and there are no provisions to address such a situation. Palestinian law makes no mention of this matter whatsoever, nor of how to deal with it should it arise, and any verbal or practical measure taken in this regard is unlawful. If Mr. Abbas wishes to decide something, he must ask the Palestinian Legislative Council to enact a special law that defines rebellion and details the measures that must be taken to end it. And in order for that to be possible, Mr. Mahmoud Abbas must first free the members of the Legislative Council from the Zionist prisons.

The Palestinian Presidential Entitlement

Mahmoud Abbas’s term as president of the Palestinian Authority ends in a few months, and a constitutional vacuum will result. Under the Basic Law in force in the areas of Palestinian self-rule, the president of the Palestinian Authority is renewed every four years through secret, direct elections. And if holding elections proves impossible for one reason or another, the chairman of the Palestinian Legislative Council assumes the presidency of the Palestinian Authority for sixty days, during which preparations for elections are made and the elections held. Such a vacuum has occurred before, and Rawhi Fattouh assumed the presidency for a brief transitional period.

Legally, Aziz Dweik, the chairman of the Legislative Council, is supposed to assume the presidency of the Palestinian Authority once the president’s term expires; and since he is held in a Zionist detention facility, his first deputy, Ahmad Bahar, is supposed to assume the presidency; and failing that, Hassan Khreisheh, the Council’s second deputy chairman, would become president. This is, however, complicated by the fact that Hassan Khreisheh has resigned from his post, so that his assumption of the presidency is no longer legally possible.

The important question is: will Palestinian presidential elections be held on schedule? There are several points I find it necessary to highlight:

First: there is a broad and deeply rooted tradition, among the supporters of the currently existing PLO, going back some 40 years, of disrespect for Palestinian covenants and for the internal instructions and regulations of the Organization and of the Palestinian Authority. I noted this matter at the beginning of this article. Arafat repeatedly overrode the Palestinian National Charter; the Executive Committee of the PLO overrode legitimate frameworks; and the Palestinian National Council did the same. Under the Authority, Arafat repeatedly overstayed his legal terms, and the Palestinian Legislative Council did the same. It is therefore very easy for the law to be circumvented, and for various justifications to be offered granting a certificate of innocence to the continuation of the status quo. The imposition of the fait accompli on the Palestinian scene holds sway over logic, law, and morality alike.

Second: the Palestinians of the West Bank and Gaza do not possess the freedom to hold elections; they must obtain the approval of both America and Israel. It is America that instructs the donor states to fund the elections, and it is Israel that cooperates to guarantee the smoothness of the security situation required for holding elections. The Palestinian Authority does not possess the funds needed to hold elections, and even if it did, it could not guarantee that Israeli forces would not enter villages and towns in the West Bank and disrupt the elections.

It is, moreover, unlikely that Israel and America will agree to hold elections whose outcome might not favor them. If Israel and America assess that Oslo’s supporters are going to lose, they will work to keep the status quo as it is, and to find some formula for Mahmoud Abbas, or whoever adopts political positions like his, to remain in the presidency. The most likely scenario is that the two states will work, directly or indirectly, to persuade Abbas to remain in the presidency and impose a fait accompli under various pretexts; another possibility is that they will impose the appointment of a vice president to take the place of the president whose term has expired. But this solution requires amendments to the Basic Law, or additions to it, so that matters take their proper legal course. Israel and America may care a little about the legal aspect, but they are relying on their Palestinian partner’s well-known record of overriding the law and indifference to bad reputation.

America and Israel are working to entrench the agreements with the Palestinians, and I believe they regret the 2006 legislative elections, and will calculate matters very carefully before agreeing to new Palestinian elections. The democratic process, elections included, is ultimately subject to the interests of the two states, and if democracy contradicts those interests, then let democracy go to hell.

Third: in all likelihood, the existing situation in Gaza will be used as a pretext to evade the electoral obligation. It will be said that elections are not possible now because of the Gaza Strip’s “rebellion,” and that the priority is to “restore” the Strip to Palestinian legitimacy, after which elections may be held. It is possible that Hamas will open the door to elections and pledge to provide every facility needed to carry out the electoral obligation. And if there is no response, Hamas will hold fast to the Basic Law, which grants Ahmad Bahar the right to assume the presidency for sixty days.

Conclusion

Matters have reached such a point for the Palestinian people that recognition of Israel has become the measure of Palestinian legitimacy. Conditions have deteriorated exactly as many Palestinian thinkers and writers had predicted, Naji al-Ali foremost among them, and Israel has become a legitimate entity, whose existence is no longer merely defended, but to which Palestinian existence itself has become tied. It is one of the strange ironies of history that the oppressed should stand in defense of their own oppressors, and the wronged in defense of the one who wrongs them.

Talk of Palestinian legitimacy cannot possibly stand up straight so long as priority is given to the agreements with Israel, agreements built upon the ruins of the free political will of the Palestinian people. There are those who see Israeli legitimacy as the priority, and who deal with their Palestinian brethren from that standpoint; and as long as matters remain so, it is difficult to speak of an imminent Palestinian national unity.

Source: Translated from the original Arabic, “شرعية إسرائيل فوق شرعية فلسطين” by Dr. Abdul-Sattar Kassem.