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Legal Decision-Making During the Palestinian Intifada: Embryonic Self-Rule

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Legal Decision-Making During the Palestinian Intifada: Embryonic Self-Rule Legal Decision-Making During the Palestinian Intifada: Embryonic Self-Rule Adrien Katherine Wingt I. INTRODUCTION ................................................ 95 II. LEGITIMACY AND COERCION ........................................ 100 III. LEGAL TRADITIONS ............................................. 102 A. Customary Law ............................................. 102 B. Islamic Religious Law .......................................... 105 C. Ottoman Law .............................................. 106 D. British Mandate Law ......................................... 107 E. Jordanianand Egyptian Civil Law .................................. 108 F. Israeli Civil and Military Law ..................................... 110 IV. NEw ACTORS ................................................. 113 V. INSTITUTIONS ................................................. 116 A. U L.U .................................................. 116 B. Popular Committees .......................................... 119 C. -Police .................................................. 120 D. Judiciary ................................................ 121 VI. DISPUTE RESOLUTION PROCEDURES .................................... 123 VII. RULES .................................................... 128 A. Landlord Tenant Relations....................................... 130 B. Strikes .................................................. 131 C. Labor Relations ............................................. 132 D. Women's Rights ............................................ 134 E. Penaltiesfor Criminal and Tortious Conduct ........................... 139 VIII. THE PERSIAN GULF CRISIS AND ITS ImpACT ............................ 142 IX. CONCLUSION ................................................ 150 I. INTRODUCTION The Palestinian' uprising known as the intifada is now in its fifth year. t Associate Professor of Law, University ofIowa College of Law. J.D. 1982 Stanford; M.A. 1979 UCLA; A.B. 1978 Princeton. I would like to thank the following people for reviewing earlier drafts of this article: Professors Bums Weston, George Bisharat, Mary Dudziak, Lakshman Guruswamy, Joost Hiltermann, Herbert Hovenkamp, Ken Kress, Mark Linder, John Quigley, John Reitz, Peter Shane, Gregory Williams, as well as Jonathan Kuttab, Melissa Phillips, Hadla Ayoubi, Rebecca Faery, Victor Arango, Makbool Javaid, and Cameron Stracher. Research assistance was provided by students Beverly Blake, Douglas Burrell, Vanita Cheung, Shea Doyle, Craig Harada, Lonnie Johnson, John Lee, Sylke Merchan, and Jamil Shawwa. A special thanks to my sources in the Occupied Territories. 1. Today there are more than five million Palestinians worldwide. Approximately 840,000 are citizens of Israel, living inside its pre-1967 borders along with 4.2 million Jews. YEDIOTH AHRONOTH, Sept. 25, 1992, at 1. For a discussion of Palestinian Israelis, see, e.g., Nadim Rouhana, The Intifada 95 YALE JOURNAL OF INTERNATIONAL LAW Vol. 18:95, 1993 Intifada,2 from the Arabic verb "to shake," connotes an attempt to shake off twenty-five years of Israeli occupation.3 During the intifada considerable world attention has focused on the image of keffiyah4-clad youth who throw stones in the Occupied Territories (the West Bank and Gaza).5 Due to this focus, some commentators have characterized the intifada as an uncoordinated reign of terror on a hapless population.' Others, including this author, see rather the beginnings of de facto Palestinian autonomy and embryonic self- rule.7 Whereas many authors have focused on the intifada's manifold social, economic, political, or human rights issues,8 this article explores another aspect of the intifada: legal decision-making and the process of attempted self- rule.9 It postulates that the Palestinians are developing embryonic elements and the Palestiniansof Israel:Resurrecting the Green Line, I. PALESTINE STUD., Spring 1990, at 58. About 960,000 Palestinians live in the West Bank, including 125,000 in occupied East Jerusalem. Lisa Hajiar et al., Palestine and the Arab-Israeli Conflict for Beginners, in INTIFADA: THE PALESTINIAN UPRISING AGAINST ISRAELI OCCUPATION 101, 105 (Zachary Lockman & Joel Beinin eds., 1989) [hereinafter INTIFADA: THE PALESTINIAN UPRISING]. The Gaza Strip had a 1989 population of 612,000. THE STATESMAN'S YEARBOOK: STATISTICAL AND HISTORICAL ANNUAL OF THE STATES OF THE WORLD FOR THE YEAR 1992-1993 at 809 (Brian Hunter ed., 1992). 2. There are often several common English transliterations for the same Arabic word (e.g. intifuda, intifadah and intifadeh). I have chosen spellings for Arabic words based on frequency of usage in the literature. 3. This article will not address justifications for the intifuda. See, e.g., Richard Falk & Bums Weston, The Relevance of InternationalLaw to PalestinianRights in the West Bank & Gaza: In Legal Defense of the Intifada, 32 HARV. INT'L L. J. 129 (1991) (arguing that Israeli occupation of West Bank and Gaza challenges international law, violates traditional human rights policies, and thus justifies Palestinian resistance); The Intifadah- An Act ofSelfDefence, 4 PALESTINE Y.B. INT'L L. 85 (1987-88) (justifying Palestinian revolt against Israeli administration of Occupied Territories). 4. A keffiyah is the traditional Palestinian white and black or red checkered headscarf. 5. This article refers to this area as either the West Bank, Gaza, or the Occupied Territories. The former Likud party Israeli government referred to the West Bank by its biblical names of Judea and Samaria. The current government calls the West Bank and Gaza the Administered Territories. Although this article concerns both the Gaza Strip and the West Bank, it will primarily discuss the West Bank due to the dearth of information on Gaza. On Palestinians in Gaza see generally Sara Roy, The Political Economy ofDespair: ChangingPoliticalAttitudes Among Gaza Refugees, J. PALESTINE STUD., Autumn 1989, at 58, 72; Ann Mosely Lesch, Gaza: History and Politics, in ISRAEL, EGYPT AND THE PALESTINIANS: FROM CAMP DAVID TO INiFADA 223 (Ann Mosely Lesch & Mark Tessler eds., 1989) [hereinafter CAMP DAVID]. 6. See F. ROBERT HUNTER, THE PALESTINIAN UPRISING: A WAR BY OTHER MEANS 124-25 (1991). 7. See, e.g., Ehud Ya'ari, Inifading: The PLO's Revolt Peters Out, NEW REPUBLIC, Nov. 11, 1991, at 16. 8. See generally CAMWDAVID, supra note 5; HUNTER, supranote 6; INTIFADA: PALESTINE AT THE CROSSROADS 91 (Jamal R. Nassar & Roger Heacock eds., 1990) [hereinafter CROSSROADS]; INTIFADA: THE PALESTINIAN UPRISING, supra note 1; NATIONAL LAWYERS GUILD, INTERNATIONAL HUMAN RIGHTS LAW AND ISRAELI EFFORTS TO SUPPRESS THE PALESTINIAN UPRISING (1989) [hereinafter NLG]; ZE'EV SCHIFF & EHUD YA'ARI, INTIFADA: THE PALESTINIAN UPRISING-ISRAEL'S THIRD FRONT (Ina Friedman ed. & trans., 1990) [hereinafter ISRAEL'S THIRD FRONT]. 9. The information conveyed in this article covers primarily the period prior to the Gulf War crisis. Source material includes interviews conducted by the first joint delegation of the National Conference of Black Lawyers of the United States of America (NCBL) and the Society of Black Lawyers of England and Wales, which visited the Occupied Territories (as well as Israel and Cairo) from December 22, 1989 through January 9, 1990 to assess the legal and judicial mechanisms developed by the PalestinianIntifada: Embryonic Self-Rule of a new legal regime"° under severe constraints." The article describes and evaluates the nascent process in which various legal actors are creating new executive, legislative, and judicial institutions and procedures to formulate and implement new rules of decision. Examination of this embryonic decision- making process illustrates the extent to which the intifada has contributed to both change and continuity within Palestinian legal culture. Palestinian society during the intifada is representative of the many societies in which the dominant legal power has little legitimacy among a significant sector of the population, 2 or is viewed as inadequate or unrespon- sive to a sub-community's legal needs. 3 Far from being merely a disorga- Palestinian people during the intifada. The delegation consisted of myself and three other individuals: Mr. Makbool Javaid, a Muslim solicitor who was the secretary and executive committee member of the Society; Mr. Manjit Gill, barrister and executive committee member of the Society; and Mr. Victor Arango, executive editor of The Human Condition, a U.S.-based newspaper. For discussion of our trip, see NATIONAL CONFERENCE OF BLACK LAWYERS, REPORT OF AJOINT DELEGATION OF THE NATIONAL CONFERENCE OF BLACK LAWYERS, USA AND THE SOCIETY OF BLACK LAWYERS OF ENGLAND AND WALES (1990) (on file with author); Victor Arango, Control or Chaos? Israel in the Occupied Territories, THE HUMAN CONDITION, Mar. 1990, at 1. Participation in the intfada leadership subjects one to immediate arrest and imprisonment, and it is therefore not possible to name sources. Suffice it to say that the four researchers talked with and recorded the observations of nearly 100 people, male and female, including prominent lawyers, community activists, journalists, political leaders, labor leaders, union members, teachers, students, elders, and others to derive some of the information cited herein. Many of these individuals had been incarcerated for their alleged political activities. We were told by various informants that our sources were representative of the various political factions of the PLO in the Unified National Leadership of the Uprising (UNLU). Although this inability
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