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Peace and the Political Imperative of Legal Reform in Palestine George E Case Western Reserve Journal of International Law Volume 31 | Issue 2 1999 Peace and the Political Imperative of Legal Reform in Palestine George E. Bisharat Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation George E. Bisharat, Peace and the Political Imperative of Legal Reform in Palestine, 31 Case W. Res. J. Int'l L. 253 (1999) Available at: https://scholarlycommons.law.case.edu/jil/vol31/iss2/1 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. SYMPOSIUM: THE LEGAL FOUNDATIONS OF PEACE AND PROSPERITY IN THE MIDDLE EAST PEACE AND THE POLITICAL IMPERATIVE OF LEGAL REFORM IN PALESTINE* George E. Bisharat I. INTRODUCTION ................................................................................ 254 II. THE LEGAL FRAMEWORK .............................................................. 256 III. PROBLEMS IN THE ADMINISTRATION OF JUSTICE IN THE WEST BANK AND GAZA STRIP ................................................................... 262 A. Absence'of Legal Unity ................................................................. 262 B. Confused and Antiquated Laws ...................................................... 263 C. W eakened Judiciaries ....................................................................266 D. Fragmented Legal Reform ............................................................. 266 IV. THE ADMINISTRATION OF JUSTICE UNDER THE PALESTINIAN AUTHORITY ...................................................................................... 268 A. Legal Unification .......................................................................... 269 B. Confusion in Laws ........................................................................ 269 C. Problems in the Judiciary .............................................................. 271 D. The Legal Profession .................................................................... 273 V. ABUSES OF HUMAN AND CIVIL RIGHTS UNDER THE PALESTINIAN AUTHORITY ...................................................................................... 274 * This article was the basis of a presentation delivered by Professor Bisharat as part of a discontinuous symposium entitled, The Legal Foundationsfor Peace and Prosperity in the Middle East, sponsored by the Case Western Reserve Journalof InternationalLaw and the Frederick K. Cox International Law Center. Professor Bisharat delivered this presentation at the Case Western Reserve University School of Law on October, 29, 1998. ** Professor of Law, Hastings College of Law, San Francisco, California. Student researcher, Ara Jabagchourian, contributed substantially to this work. I have also bene- fited from discussions with Abigail Abrash, Jamal Abu-Khadijeh, Abd al-Karim Abu Salah, Jaleh Bisharat, Chris George, Bly Paine, Glenn Robinson, Keith Schultz, and Joe Stork. 253 CASE W. RES. J INT'L L. [Vol. 31:253 A. Illegal Arrests and Detentions ........................................................ 275 B. Torture and Abuse of Detainees ..................................................... 276 D. Muzzling Freedom of Expression ................................................... 279 VI. THE POLITICAL IMPACT OF HUMAN AND CIVIL RIGHTS VIOLATIONS ..................................................................................... 283 VII. U.S. AND INTERNATIONAL POLICY RESPONSES ........................ 286 VIII. CONCLUSION ............................................................................... 289 I. INTRODUCTION The message I wish to convey is relatively simple: first, that an ag- gressive program of legal reform in Palestine' would contribute strongly to the successful conclusion of a just, and therefore, durable peace be- tween Israelis and Palestinians; and second, that such a program of legal reform should be elevated to a primary concern on the list of interna- tional and U.S. policy objectives for the region from its currently low level. Palestinians are far more likely to remain committed to the peace process when they are convinced that peace has brought tangible benefits to their lives. After nearly thirty years of strongly repressive Israeli mili- tary occupation, Palestinians in the West Bank and Gaza Strip have a deep yearning for democratic self-government, and their continued frus- tration erodes support for the peace process. Moreover, a stable, democ- ratic Palestinian administration is, in the long run, a more reliable peace 1 Although I join the international consensus in support of the right of the Palestinian people to national self-determination, I do not use the term "Palestine" to signal such support. No commonly accepted expression exists that describes the complex of laws and institutions needing to be reformed. "Palestine" is the term currently used by Palestinians to describe the entity that is now emerging in the region. I adopt this term without pre- judgment as to whether this entity will ultimately gain recognition as a state or not. See generally Omar M. Dajani, Stalled Between Seasons: The InternationalLegal Status of PalestineDuring the Interim Period,26 DEV. J. INT'LL. & POL'Y 27 (1997) (discussing the national rights of the Palestinian people). 2 As one observer has put it, the challenge of creating a viable legal system in Pales- tine has been overshadowed by the "high politics" surrounding the Oslo peace process. See Glenn E. Robinson, The Politics of Legal Reform in Palestine, J. PALESTINE STUD., Sept. 22, 1997, available in 1997 WL 10948373. 1999] LEGAL REFORM IN PALESTINE partner for Israel than one that is founded on personalistic ties to an ag- ing, and possibly ailing, leader - Yasser Arafat.3 The impetus for this Article has its roots in my experience within the last year consulting over the Palestinian Legislative Council's draft law on the independence of the judiciary, during which time I have met with elected council members, professional staff of the Council, representatives of the judiciary and executive branches, academics, and others. Part of my mission here is simply to bear witness to the hopes and desires of some of the people on the ground - hard-working, over-burdened, and largely un- recognized Palestinians who are struggling against daunting odds to provide their people with an accountable government and a society governed by the rule of law. The term "legal reform" is a broad one. Indeed, the scope of reform needed in Palestine is very broad, encompassing legal institutions, civil and criminal procedure, and many areas of substantive law. 4 1 will not, however, address all aspects of the needed reform. Specifically, I will not discuss the necessity for substantive changes in the areas of corporate banking and commercial law,5 even though such changes are necessary to stimulate local and foreign investment, which in turn are needed to coun- teract unemployment and the general economic deterioration in the Pales- tinian sector. Other symposium participants will address these topics with far greater expertise than I would.6 More to the point, however, there are other areas of legal reform that have a greater capacity to di- rectly enhance the peace process - namely, those that affect the human 3 There has been much speculation in the press as to the status of Arafat's health. See, e.g., Arafat's Tremors, JERUSALEM POST, Nov. 20, 1997, at 10; Marjorie Miller, Arafat's Sickly Appearance Raises Questions About Health, Succession, Mideast: Pales- tinianLeader's Tremors Add to Concerns About Peace Process with Israel, L.A. TIMES, Nov. 18, 1997, at A6. 4 See generally Hiram E. Chodosh & Stephen A. Mayo, The PalestinianLegal Study: Consensus and Assessment of the New PalestinianLegal System, 38 HARV. INT'L L.J. 375 (1997) (discussing the status of and proposing reforms to the Palestinian legal sys- tem). 5 For a discussion of these issues, see generally MAZEN E. QuPTY & JOHN L. HABIB, LEGAL ASPECTS OF DOING BUSINESS IN PALESTINE (1995). 6 See David P. Fidler, Foreign PrivateInvestment in PalestineRejected: An Analysis of the Revised PalestinianInvestment Law, 31 CASE W. RES. J. INT'LL. 293 (1999); see also Keith C. Molkner, Legal and StructuralHurdles to Achieving PoliticalStability and Economic Development in the Palestinian Territories, 19 FORDHAM INT'L L.J. 1419 (1996). CASE W. RES. J. INT'L L. [Vol. 31:253 and civil rights7 of the Palestinians - and it is these areas on which I wish to focus. Legal reform is only one of many objectives that can and should be pursued in support of the peace process, and I do not for a moment imagine that it, alone, will insure a lasting peace. As the negotiations have proven so labored and their success is in no way guaranteed, we must exploit every avenue possible to advance the cause of peace. Moreover, legal reform is one important area in which progress is politically feasible, a feature that may distinguish it from other possible policy objectives that, in the abstract, seem to offer even more attractions. My argument is laid out in eight sections, of which this introduction is the first. In the second section, I will outline the legal framework within which the Palestinian Authority8 - the interim governing body established for the Palestinians in parts of the
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