Rule of Law in Palestinian Society and Politics (*)
First of all, I would like to thank Professor Danilo Zolo for extending to me the kind invitation to present some ideas about open questions in relation to the Rule of Law and Individual Rights.
I think it is appropriate for me to present my ideas by reference to the Palestine and the Palestinian people. Firstly, because this is the subject I am most familiar with, and secondly because Palestinian society and the Israeli-Palestinian conflict are very suitable subjects for illustrating some of the open questions about the notion of the Rule of Law.
My plan is as follows. I begin by describing two domains in which questions about the rule of law can be raised. The first of these two domains is the domain of international law, where we discuss relations between nations, peoples and states. This serves the purpose of introducing questions about collective rights, such as the right to self-determination, as well as questions about justice in the world order. The second domain is the more familiar domain of domestic (national) law, where we discuss relations between individuals, or between individuals and their government, considered as taking place within the bounds of national society.
Both domains, together with associated questions about the rule of law, can be illustrated by examples drawn from the long and painful experiences of the Palestinian people during the 20th century. Therefore, in the second part of my plan, I shall dwell on the situation of the Palestinian people both internally and externally. In the process I shall discuss some questions about rule of law which do not have obvious answers.
II. Two Domains of the Rule of Law
Obviously, there are many types of law, and many ways of classifying the things which we call "laws". But the division or classification which is relevant for my presentation here is the division between domestic (national) law and international law. Domestic law, as the name suggests, governs relations between citizens, between citizens and their governments, or between groups and institutions within the bounds of a given national society. International law, on the other hand, is supposed to govern relations (typically) between states, nations, nation-states, or comparable agents. The subjects of domestic law are (in most cases) individuals, whereas the subjects of international law are (typically) states or other collective entities of comparable size and nature.
In both cases it is possible to speak of the presence or absence of "the rule of law", even if one cannot do that with the same degree of clarity or certainty. Let us explain the meanings, differences, and similarities between the rule of law as it applies in the area of international relations, and the rule of law as it applies in the area of domestic relations between members of one and the same society. We begin the simpler and more familiar case of domestic law.
According to the formal definition of "Rule of Law", as applied to the legal system a specific country (which is what we referred to above as "domestic law") one looks for such criteria as the existence of an independent and impartial judiciary, equality before the law, and provisions for judicial review of government action. (1) Some authors speak of "the limitation of political power in general, and of government's sway over citizens in particular", (2) while others seek to measure the rule of law in terms of a how much it comes close to a moral vision of "the good legal system. (3)
There are indeed some disagreements and differences in the interpretation of what "the rule of law" means, but, fortunately, it is easy to determine where they come from and what causes them. They have to do with the fact that "rule of law" is to a large extent a normative concept, not a purely descriptive one. For when we speak of "the rule of law" we do not mean any situation where there are publicly declared laws and rules that are strictly enforced (which may even apply to everybody) regardless of the effect, good or bad, which they might have on the quality of life and individual rights. After all, we want to distinguish between mere "rule by law", which can be brutal and utterly unjust, and what we want to call "rule of law". "Rule of law" is not just "rule by law", but rather rule by law which satisfies certain criteria. What these criteria are is subject to debate. It seems clear, at any rate, that the advocacy of the rule of law is designed to guard against injustice and harm to people's legitimate interests and rights.
Similar, but not exactly the same things can be said about the rule of law in international affairs. When we talk about international law we mean, of course, laws which seek to regulate and govern relations between states and nations that are considered the "addressees" of international laws and legal norms.
States, nations, and nation-states, nowadays are supposed to form a "community". The concept of "international community" invites one to think of it in analogy to the "national community", whose members constitute one nation. For here, again, laws are needed to regulate relations between the concerned parties, to resolve disputes and to pass judgment on policies that are undertaken by states vis-à-vis each other. Primary and best known among the international laws and norms are the charters, declarations, covenants, resolutions that are associated with different UN Organizations and organs.
As in the case of the paradigm of domestic law, the notion of the "Rule of Law" in international relations, is a normative concept. According to Ian Brownlie, author of The Rule of Law in International Affairs, "The moral purpose of the United Nations was the promotion of the Rule of Law in international relations..." (4) According to the same author, there is a moral dimension in the notion of "The Rule of Law", and it consists in the fact the "The Rule of Law is more than the application of the existing legal norms, but must involve an assessment of the quality of the legal norms." (5)
The similarities do not stop here. Like law of the constitution, which is probably the prime example of national (domestic law), "international law addresses the very agents who should apply the rule: the rules are essentially principles of self-limitation." (6) This is very much in line with what many authors say about constitutionalism, which is another name for the notion of the rule of law in the domestic context. According to Elster, for example, "Constitutionalism refers to limits on majority decisions; more specifically, to limits that are in some sense self-imposed." (7)
There are of course, many dissimilarities between the rule of law as applied at the domestic level, and the rule of law as applied in the area of international relations. Some of the differences are obvious, such as the fact that the rule of law at the domestic (national) stands to affect individuals directly, whereas international rule law does not relate to individuals except in a limited number of cases, such as genocide and crimes against humanity. Less obviously, there are differences in the matter of implementation and use of sanction to implement the law. States have power over their citizens, but there is nothing comparable to this in the case of the states themselves. There is no world government that that can bring states to order. Not only is enforcement less frequent, but it is often controversial on account of the difficulty of distinguishing between the interests of justice and the interests of the stronger nations.
As I said before, Palestinian experiences, past and present, provide many instructive examples and illustrations of the problems and question which arise in connection with the rule of law among states and nations, as well as the rule of law nationally considered. I believe that these experiences also illustrate that the two domains, domestic and international, are not entirely separate from each, that what happens in one domain has implications for what happens in the other.
III. Palestine and the Rule of Law in International Relations
From the end of the 19th century till the present, Palestine and its people have been variously dealt with by other states and nations, near and far, strong and weak, colonialist and non-colonialist, sometime acting in community (such as the League of Nations and later the United Nations), sometimes acting alone. Palestine has not been unique in this, but to its inhabitants, foreign interventions and international resolutions have been an unmitigated tale of woe from beginning to end. For these reasons Palestinians are probably the most cynical people when it comes to the idea that nations can live and behave in accordance with "the Rule of Law", as opposed to "the Rule of the Strongest".
In 1897, when the First Zionist Congress was held in order to discuss the establishment of a national homeland for the Jewish people, Palestine had about 600,000 inhabitants, about 95% of whom were Arabs, while about 5% only were Jews. By 1918, and after two waves of immigration, the percentage of the Jewish population rose to 10%, but they still owned less than 3% of the land of Palestine.
Shortly before that (in 1917) the British Government, led by David Lloyd George, indicated its support for the Zionist project to establish a national homeland for the Jews in Palestine through a letter sent to the Zionist financier Baron Edmund de Rothschild by the British foreign minister Arthur Balfour. In this letter (known as the as "The Balfour Declaration") it was stated that
"His Majesty's Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country." (8)
Then in 1922, in what was the first serious brush that Palestinians had with international organizations and the type of legitimacy which is supposed to characterize decisions taken by international bodies, Britain was given the power of mandate over Palestine, with the terms of the Balfour Declaration included in the mandate. From that time on Jewish claims to Palestine began to enjoy what could be called "international legitimacy", for what it is worth. There is here ample material for reflection on a possible distinction between what is "right" (potentially part of the "rule of law" among nations) and what is merely part of international law (potentially part of "rule by law" which reflects the interests of the powerful agents in the international community.)
The Jews continued to migrate to Palestine, whose inhabitants continued to resist the utterly unfair designs with outsiders had on them. By the year 1947, on the eve on UN decision to partition Palestine between Jews and Palestinian Arabs, there were around 1.35 million Palestinian Arabs and about 650,000 Jews, who had acquired roughly 6% of the mandated area of Palestine. Nowhere in Palestine did the Jews constitute a majority of the population except in the area around Tel Aviv. (9) Yet the General Assembly saw fit to give the Jews around 56% of the territory of Palestine for a Jewish State.
The Palestinians and their Arab brethren in the neighboring countries refused to accept the UN partition resolution. They waged war on the new state of Israel and lost. In the aftermath of 1948 war, close to half the Palestinian population (around 750,000) became refugees, inside and outside what remained of their own country. They number around 3 millions now, with no hope of returning to their former homes, with little chance of being integrated in the neighboring Arab countries in which they reside.
After their defeat in 1948, Arab states continued to wage war on Israel, and they continued to lose them-- until the arrival of "the era of peace", ushered by Camp David Agreement with Egypt, which was followed by the Oslo Accords. The Oslo Accords lie in tatters as we speak now, and it is unlikely that they will have much relevance to the final status which is being contemplated now. The Israelis have continued their habit to build settlements in conquered territory which regard as their own, and the Palestinians have continued to resist, increasingly in ways which most of the world has come to regard as terrorist.
This is, in brief outline, how Palestinian history went from late 19th century till the present. To Palestinians who bother to think about international law and international legitimacy, it is obvious that justice lies on one side, while international law and legitimacy lie on the other. As I said before, Palestinian experience has not been unique in this. Many other colonial peoples can tell similar, may be worse, stories. But the Palestinian experience differs from many in that the failure of world powers and other nations to abide by "the rule of law" (in the moral sense of "rule in accordance with justice", or what can pass for reasonable justice at any rate) had far-reaching consequences for the Palestinians, consequences that extend to the other domain of "the rule of law" - domestic or national law.
IV. The Rule of Law in Traditional Society Under Occupation
To see what the consequences were, it is useful to compare Palestinian history with the history of other Arab peoples, after the fateful year of 1948, the year which saw the birth of the State of Israel and the dashing of Palestinian hopes to establish a state of their own.
Casting a wider net than we do here, H.A.R. Gibb compares the social structure of Islamic societies in the Near East (including Palestine) with that of European societies, and observes a difference which has important consequences for both politics and legal systems. According to Gibb, "European groups" possessed no natural force of cohesion, and thus tended to support contractual relations both between themselves and their political and ecclesiastical authorities. Islamic societies, on the other hand, are characterized by "marked and self-conscious" kinship groups which gave society resilience and made it resistant to legal subjection to external authority. (10)
Gibb's observations about the strength of kinship groups in Islamic societies apply to the Palestinian society in particular. Like other traditional agricultural societies in the Near East, Palestinian society was - and, to a large extent, continues to be - a society where "status is secured by possessing a place within the complex structure of family, clan and community" (11), where the village - or other sub-national units - are viewed as "the proper framework of social control, mediation, and punishment." (12)
Of course, traditional society is not lawless (no society is ever, otherwise it cannot exist as a society), but it does not exhibit the traits which call to mind the notion of "the Rule of Law", I mean traits such as respect for individual rights and liberties, equality before the law, etc. But consider the developments which occurred in the neighboring Arab societies, but which failed to occur in the case of Palestinian society as a result of the Palestinian-Zionist conflict, and the subsequent occupation by Israel of the rest of historical Palestine. The developments were many. Some of them had implications for the possible development of rule of law in Palestinian society.
After 1948, many Arab countries were granted independence and proceeded to form "nation-states." The states which emerged had central governments which united all the regions and populations in their areas of jurisdiction. They went on to form unified educational and legal systems which were often aided or influenced by the former colonial (that is to say, Western) countries. It is true to say that the "nation-states" which emerged in this way contain "more state" and "less nation" than their names suggest, but the fact remains that political communities were being slowly formed, which could aspire to something like the modern "rule of law". At least some of the pre-conditions are present: recognized boundaries, central government, and well-defined community of people.
Palestinian society did not have these advantages. In fact, after 1948, it ceased to be one society. Instead it became many societies, with some Palestinians living in Israel, some in Jordan, some in Syria, some in Lebanon, some in other countries. And while they were united by memories of a lost homeland, and hopes of eventual "return" to the homeland, the fact remains that they lived under different educational, legal and political systems, a fact which the remnants of Palestinian society, under Palestinian Authority (PA) rule, continue to struggle with. This is evidenced by current attempts to unify the legal systems in Gaza (which lived under Egyptian rule until 1967) and the West Bank (which was formally part of Jordan until 1988).
Having no state of their own, and being ruled by non-Palestinian government throughout the entirety of their modern history, the Palestinians were in no position to initiate the social and political developments which could have hastened the transition of society form the traditional phase to the somewhat more modern phase, as was the case in neighboring Arab societies. It is not surprising that the "notable class" (consisting of the heads of traditionally powerful clans and families) retained its superior position in Palestinian society, whereas it was overthrown in much of the Arab world in the post-independence period. (13)
The obstacles to the establishment of the rule of law in the Palestinian Territories (which came under PA jurisdiction as a result of the Oslo Accords) are many. Traditional society tends to operate by means of customary laws and traditional mechanisms as a matter of age-old habit, but the experience of occupation and the continual dependence on foreign powers have over the years served to strengthen the reliance on kinship groups and traditional institutions, as the only protection against a potentially damaging encounter with more powerful adversaries. In the few years of relative autonomy which West Bank and Gaza experienced before the Second Uprising many problems became clear. Some of those that are of direct relevance to the rule of law include: 1) Weakness of the Judiciary, in part as a result of the inertia of tradition, but also as a result of the policies of the Palestinian leadership, which was determined to rule in the same autocratic, patriarchal way which is characteristic of Middle Eastern society. 2) The abuse of power which manifested itself in the creation of a huge, inefficient bureaucracy on the basis of political patronage, as opposed to qualification, as well as in the condoning of corruption as a means of rewarding allies and protégés. 3) The lack of any genuine attempt on the part of society (and its "representative", the Palestinian Legislative Council) to bring the Executive branch of the government to account.
Currently, the Western powers that are trying to mediate the Israeli-Palestinian conflict are clamoring for reforms in Palestinian government and society. The desired reforms include many things which fall under the rubric of "rule of law". This again serve to remind one of the relations between "rule of law among nations" and the rule of law on the domestic level. We can use this to illustrate some of the difficulties and open questions about the rule of law in relation to individual and national rights.
V. Open Questions about the Rule of Law
The case of Palestine, complex and full of conflict as it is, is well-suited for raising questions about the rule of law at both the international and domestic levels. It is also useful for raising questions at the comparative level where one seeks to relate the different domains of law to each other. In what follows I shall offer examples of questions from these three areas.
My first example has to do with the right to self-determination as applied to the Palestinian people in the light of international law. The principle of self-determination, as a right which peoples have, was first propounded by American President Woodrow Wilson, who called for
"The settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship upon the basis of the free acceptance of that settlement by the people immediately concerned and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement or for the sake of its own exterior influence or mastery." (14)
Since that time, the principle has become enshrined in various UN statues, such as article 1 of the UN Charter which calls for developing "friendly relations among nations based on respect for the principle of equal rights and self-determination." But before this principle can be applied, "peoples" or "nations" must be identified, for it is certainly out of the question to let any group of people claim a right to self-determination, no matter how they choose to define themselves, or no matter what their history or circumstances are.
The question of who "the Palestinian people" are, that is, how they are to be identified in contradistinction from "the inhabitants of Palestine", arose in the early stages of the Arab-Israeli conflict. Of course, this is not (it was never) a purely academic question, for the if the Zionists could prove their claim that Palestine was not inhabited a people who had national rights and were entitled to self-determination, then this would go a long way towards disproving the claim that that the establishment of Israel as a homeland for the Jewish people entailed denial of Palestinian national rights.
Similarly, the Palestinian side raised and continues to raise questions about Jewish self-determination in Palestine, arguing that Judaism, as a religion comprising peoples of different races, languages, and nationalities, does not constitute a people, and therefore the Jews were not entitled to self-determination as Jews, any more than the Christians or Muslims are entitled to self-determination as Christians or Muslims.
Of course, this is not the place to adjudicate such debates. But I mention them here in order to explain how rule of law as a norm governing relations between states, nations, and peoples, presupposes resolutions of questions about how to identify the entities in question. This also brings us close to another difficult question: how law-abiding nations and states ought to act vis-à-vis indigenous populations that do not live as nations. Given their lack of "modernity", such peoples may not have "a capacity to maintain [their] right by making international claims." (15) Does this mean that they have no rights? Presumably, not. If they are not to be treated as nations, are they to be treated as individuals? But are individuals ever subjects of international law? Isn't it only states and nations and other comparable entities that are subject to international law?
I move now to give another example of open questions about the rule of law, this time in connection with domestic law. This is not far removed from the question which we raised about the rights of indigenous peoples who may not be organized as nations, who may even have no interest in self-determination along Wilsonian lines. This was, until recent times, the situation of traditional agricultural Near Eastern societies. They lived in a "pre-nationalist age" until the dissolution of the Ottoman Empire and its subsequent replacement by Western powers (such as England, France and Italy) which "mandated" Near Eastern peoples into nationhood, as one historian puts its (16).
Indigenous peoples, of course, are not lawless. They live by laws which are often called traditional, customary, primitive, and other unappealing designations. No matter what attitudes one has towards them, they are certainly different from modern notions of the rule of law, in that they tend to tolerate many forms of discrimination (according to gender, age, etc.) and in that they tend to apply contextually, rather than uniformly and in abstraction form particularities of circumstance and personality.
But as most anthropologists and social scientists will testify, these laws resulted from a long process of adaptation and development. Traditional or pre-modern societies are different from modern Western societies when it comes to politics, the law and their social life - e.g. the division, or lack of it, of life into private sphere and public sphere. Thus the question will inevitably arise: what is it that we do when we attempt to introduce what we call the rule of law in such societies? Is this part of modernization? Or is part of Westernization? Is it an attempt to modify the workings of the culture? If so, by what right are we entitled to do this?
The impulse to interfere with the workings of traditional laws and customs, to create institutions and ways of life in line with the modern notion of the rule of law, may come form inside, or it may come from outside. That is, domestic elites may assume the leadership of their traditional societies in order to create or accelerate the process of change towards modernity. In this way, the move towards rule of law may be viewed as an internal dynamic on the part of the society itself. But it is also possible for the demand for social-political change to emanate from external forces. In this latter scenario we may hear arguments or proposals to the effect that democratic government should be a criterion of international legitimacy, that recognition should be withheld from despotic governments. Similar claims can be made with regard to the rule of law. In fact, democracy and the rule of law are on some accounts inseparable from each other.
Both types of impulse towards changes can be seen at work in the Palestine now. During its few years in power, the Palestinian Authority distinguished itself by corruption, nepotism, unchecked executive authority and lack of transparency, all marks of the absence of the rule of law. Objections to these practices were made early on by domestic Palestinian elites and activists working in NGO's and other sectors in society, but their calls were little heeded. In fact, opposition was often silenced, and mistakes were often excused by reference to the lack of experience and limitations imposed by Israeli occupation.
But in recent months, as known to all those who keep up with developments in the Palestinian-Israeli conflict, we have been hearing demands made by donors, by parties active in the peace process, such as the US, the UN, and members of the European Union, all calling for political (and even social) reforms within the Palestinian Authority, in order to ensure transparency and enforce a measure of the rule of law.
These developments provide us with a third example of open questions about the rule of law, this time in connection with the interaction between international and domestic law. For when the international community, represented by the UN, or powerful international actors such as the US, makes such demands on a fairly helpless and anarchic entity such the Palestinian Authority, puzzles are bound to arise as how to distinguish between rule of law and sheer manipulation of domestic situations in order to serve external agendas. This has led to paradoxical results in the case of Palestine. One of the stories that can be told in this connection is rather amusing, and may be worth re-telling. It went like. As some of you know, the reforms being demanded of the PA include empowerment of the Judiciary and recognition of its independence. Recently, the Palestinian Supreme Court issued a ruling to the effect that a certain detainee was being improperly jailed, that he was to be released from the Palestinian jail in which he was imprisoned. But the problem was that this detainee was none other than the Secretary General of one of the PLO factions, the Popular Front for the Liberation of Palestine. He is being held in a Palestinian jail in the city of Jericho, but the jailors are British and American. Of course, the Palestinian Authority was in no position to comply with the Palestinian Supreme Court decision. Israel would not allow it, nor would America or Britain, because all three governments regard him as the head of a terrorist organization. But it looks strange and sadly humorous, that countries which call for respecting the independence of the judiciary turn a blind eye to the decisions of the judiciary when they are not to their liking. This is not an uncommon occurrence nowadays, when Western countries welcome and encourage democracy in Muslim majority countries, while they are at the same time terrified that popular elections may bring Islamists to power in these countries. They want free and fair elections, but only provided that these fair and free elections produce desirable results.
We have a problem here. On the one we do not want to say that members of the international community should take no interest in the affairs of new nations and emerging states, but at the same time we want to avoid manipulation and intervention for the sake of domination. But how can we distinguish between cases where foreign nations are behaving in accordance with the rule of law and in the interest of a just world order, and cases of manipulation, and control?
Obviously, this leads us to discuss different conceptions of rights, justice and order as these apply to the relations between nations, between North and South, between traditional and modern societies, between imperialist countries and former colonies. The problems we face here are not unrelated to the problems that each society has to face on its own when it considers its traditions in relation to the modern notion of rule of law. Here again we have conflicting views with regard to rights, justice and order. Debates about ethical matters that are summarized under such titles as "Relativism" and "Subjectivism" are always lurking in the background when we talk about rule of law. This is always the case when we discuss the notion of the rule of law, regardless of whether we are talking about the international or domestic domains, or the interaction between the two. In a way, the notion of rule of law contains nothing but open questions.
*. Contribution to the international conference Rule of law and individual rights. Open questions, Florence, December 6, 2002.
2. Dario Castiglione, "The Political Theory of the Constitution", in Constitutionalism in Transformation, ed. Richard Bellamy and Dario Castiglione (London: Blackwell Publishers, 1996), p. 5.
3. Stephenson, p. 2.
4. Ian Brownlie, The Rule of Law in International Relations. The Hague: Martinus Nijhoff Publishers, 1998, p. 1.
5. Brownlie, p. 1.
6. Brownlie, p. 14.
7. Jon Elster, "Introduction" in Constitutionalism and Democracy: Studies in Rationality and Social Change, ed. Jon Elster and Rune Slagstad, Cambridge: Cambridge University Press, 1988, p.2.
8. Tomis Kapitan, "Historical Introduction to the Philosophical Issues", in Philosophical Perspectives on the Israeli-Palestinian Conflict, ed. Tomis Kapitan. New York: M. E. Sharpe, 1997, p. 9.
9. Kapitan, p. 19.
10. Gibb, H.A.R. "Religion and Politics in Christianity and Islam", in J. Harris Proctor, ed. Islam and International Relations. London: Pall Mall Press, 1965, p. 14.
11. Shimon Shamir, "West Refugees - Between Camp and Society", in Joel S. Migdal, Palestinian Society and Politics. Princeton: Princeton University Press, 1980, p. 151.
12. Gabriel Baer, "The Office and Functions of the village Mukhtar", in Joel S. Migdal, Palestinian Society and Politics. Princeton: Princeton University Press, 1980, p.112.
13. Glenn E. Robinson, Building a Palestinian State. The Incomplete Revolution. Bloomington: Indiana University Press, 1997, p. 3.
14. Cited in Kapitan, p. 13.
15. Brownlie, p.35.
16. Musa Budeiri, "The Palestinians: Tensions Between National and Religious Identities", in Joel Beinin and Joe Stork, eds. Political Islam (Essays from Middle East Report). London: I.B. Tauris & Co Ltd, 1997, p. 194.
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