This will not be an article about statistics, numbers, and gruesome
details of the human-rights situation in the occupied Palestinian
territories. As it happens, the human-rights situation in the
occupied territories is one of the best documented in the world.
The facts, figures, and descriptions can be found in the annual and
other reports of many local and international human-rights
organizations.1 All that can be said about it is that it is not the
worst in the world, but also definitely not the best. Nor will this
article even attempt to propose novel, creative solutions. Instead,
this article will try to expose some of the complexities that
underpin the current human-rights situation in the areas under
Palestinian National Authority (PNA) control. Needless to say, the
account will be fragmented, quite anecdotal, and will probably not
do justice to reality.
Most of the human-rights violations in the occupied territories
remain, to this day, a result of Israeli occupation. Such
violations are multi-layered. The first and most obvious is the
Israeli violation of the collective right to self- determination.
Israel, legally and factually, still controls the whole of East
Jerusalem, the West Bank, and the Gaza Strip, "Area A" included.
While the occupation remains, the possibility of building the legal
and political guarantees for the respect of human rights is
virtually nil. Then there are direct human-rights violations, both
in terms of "concrete" actions, such as extra-judicial executions,
torture, and house demolitions, or in terms of the pervasive,
routinized, everyday measures committed by the soldiers and
settlers such as the denial of freedom of movement, economic
deprivation, physical and verbal humiliation, and all the other
trappings of an apartheid regime. These, in addition to their
immediate effect on their immediate victims and their families,
create long-term social effects that would require a great deal of
resources to counterbalance.
Negative Provisions
Most important to the present context, however, is the effect of
the occupation on the actions of the PNA. These include both
structural conditions and direct pressure to violate human rights.
While agreements between the two sides contain token references to
the respect of human rights, such provisions remain devoid of any
implementation or enforcement mechanisms. Bluntly speaking, the
human-rights provisions of the various Palestinian-Israeli
agreements are a joke when read in conjunction with the "war
against terrorism" (cum arbitrary "wanted lists," arbitrary arrest,
and torture), "the war against terrorism's infrastructure" (cum
cracking down on clinics and kindergartens "associated" with
"terrorist groups"), and the "war against incitement" (cum
deprivation of the freedom of expression).
The ineffectiveness of these provisions becomes more striking when
the PNA's partner in ensuring respect for human rights is a state
that legalizes torture (Israel, according to the U.N. Committee
against Torture), and the verifier is an agency that used to
distribute torture manuals in Guatemala in the not-so-distant past
(the CIA).
Obviously, blaming Israel for all the evils in the PNA areas is
inaccurate. A very real portion of the blame falls on the
Palestinian side. In this context, one can differentiate between
two concepts: human rights and citizens' rights. The former include
violations of the rights of the individual as stipulated in
international instruments and standards. The latter go deeper to
include failure to set up a system that guarantees respect for the
various rights, and by extension, engender violations of the
former. In other words, human-rights violations can conceivably be
remedied through recourse to law, while citizens'-rights violations
negate the possibility of such recourse. Citizens' rights, then,
include concepts such as the rule of law and separation of powers.
This article argues that human-rights violations are predominantly
committed by Israel, while citizens'-rights violations remain a
salient aspect of the PNA.
Leadership Style
Some would argue that the Palestinian side had no choice but to
succumb to Israeli pressures in unbalanced negotiations in which it
had very little to bargain with. This, however, does not explain
why, in the spheres where the PNA has a margin, its performance has
also been less than exemplary. The judiciary is a case in point. No
political will is directed to creating an independent, functioning
judiciary. Pessimists would argue that the contrary is actually the
case, where extra-legal dispute settlement mechanisms (through
patronage, connections, and tribalism) are being supported at the
expense of the judiciary. That the Independence of the Judiciary
Bill generated so much interest that it passed with only eight
votes at the Palestinian Legislative Council, is telling. Here, we
are not even talking about the judiciary being involved in cases of
political dissent and other areas of concern to "the security of
Israel" (who cares about the security of Palestinians anyway?). In
these areas, let the Israeli government and U.S. Vice-President
Gore have their State Security Court. We are talking about regular
courts dealing with regular cases to ensure that regular life is
ruled by law.
One can safely say that the PNA suffers from an ineffective
legislature, a virtually non-existent judiciary, and an
inefficient, bloated bureaucracy. However, it would be
self-delusional to assume that these are the causes of the current
citizens' and human-rights situation. They are actually symptoms of
a phenomenon that goes way deeper. They are symptoms of a
leadership style - which, by the way, reproduces itself on all
levels of the exercise of power - that cannot deal with
institutionalization. One that honestly believes that it, and only
it, knows best and must therefore be involved in every decision.
With this mentality, the role of the arms of government changes
significantly. The legislature becomes a nuisance that has to be
contained, rather than a partner to be worked with. The judiciary
becomes a body whose decisions can be put aside by the leadership
that knows best. Never mind that a judiciary, even one that makes
occasional mistakes, is an indispensable element for maintaining
stability based on equality before the law and derived from
universal legal entitlements.
The role of the bureaucracy changes significantly. It is no longer
there to exercise discretion as delegated to it through law in
order to achieve goals that can be discerned by looking at the laws
that govern their functioning. Instead, the function becomes to
help the leader to do what is right (the latter being determined
ultimately by the leader). Institutionalized delegation of
authority has no place in such a scheme. Some argue that this
situation actually includes a high degree of delegation since
low-level officials are, to a large extent, masters of their own
fiefdoms. However, if one is to define delegation as a regulated
process with clearly demarcated boundaries derived from a rational,
law-ruled set of objectives, then the kind of "delegation" in the
case in question would be better described as chaos. The primary
role of the bureaucracy becomes to provide salaries and perks for
people who would otherwise - out of envy, no doubt - distract the
leadership from its noble mission. In this context, transgressions
by the executive that do not affect the leader's path are glossed
over as part of the cooptation package.
Does this mean that if certain high-up individuals are changed,
human-rights violation will cease and the rule of law will reign
supreme?
Not quite so. One of the main internal causes of the unacceptable
human-rights situation in Palestine is that the rule of law in
Palestine still has to compete with other social institutions and
other legitimacies. Social relations, which include political
relations, in Palestine are still governed by gifts and patronage.
Institutions that cater to this (tribalism and factionalism come to
mind) thrive. By definition, the rule of law is the negation of
patronage. As such, it is almost always bound to lose out when
confronting a status quo that has its established
beneficiaries.
Loyalties and Hierarchies
The clientelist mentality in Palestinian society was very ready and
welcoming for this mode of government. I am still amazed whenever I
open a local newspaper and find letters of "thanks and gratitude"
to the President for his generosity in appointing someone, in
ordering the release of a prisoner, or in allocating the funds for
a street light in some village.
A society that looks at public appointments, budgetary allocations,
and the implementation of court rulings as favors requiring public
declaration of gratitude, and by extension other forms of blind
loyalty, is not a society that functions through rights. Put
simply, and with a good measure of over-generalization, rights and
the rule of law are not internalized values in Palestinian society.
Why it is so is beyond the scope of this paper, but one can drop
some hints: the occupation, tribalism, and factionalism again come
to mind. The PNA is not unhappy with this situation. According to
Marcel Mauss,2 gifts require reciprocity. When material reciprocity
is not possible, loyalty substitutes and hierarchies are
established. This was starkly evident recently when two murderers
were executed not because the law so dictates [this is not to be
read as accepting the death penalty if prescribed by law], but
rather because there was overwhelming public demand. Not
surprisingly, the next day, newspapers made a lot of money from
letters of gratitude and renewed loyalty and, the day after, the
whole story was distant history. Gifts and appeasement become a
means for stifling real, constructive opposition. Therefore, it is
not surprising that the PNA is actually nurturing such practices
and institutions.
In this setting it is quite difficult to even start talking about
human rights. Rights are not gifts or charity; rights are something
one is entitled to and can obtain directly through law and without
an intermediary. If there is no rule of law, if the public
functionary (civil or security) locates his loyalty not with the
law but with the patron, then he will gear his actions towards
pleasing the latter. When the public sees that the law is
ineffective, it is only natural that other means to gain redress
are sought. Stability and predictability are two of the main
justifications for the existence of law.
Hence, it is possible to say that the human-rights situation in
Palestine, if one is to gauge it by reference to the number of
deaths in custody and the prevalence of torture, is not
extraordinarily bad. It is even possible to say that the PNA has
been receptive to human-rights complaint and has encouraged some
developments. What cannot be said is that there is any fundamental
development in setting up institutions that would guarantee, in a
systematic, "default" way that citizens' rights are not
violated.
If the article is to end here, people who believe in unchangeable
characteristics of nations and cultures (i.e., racists) would have
a great time. They were right, after all, to say that the
Palestinians are, by their very nature, incapable of ruling
themselves. To counter this essentialist argument, it is enough to
point out that, while the neat separation of the categories of
occupation, authority and society is convenient for analytical
purposes, reality is a bit messier.
The fact that society does not view the law as a viable route to
realize entitlements is partly due to "cultural" reasons, partly
due to the occupation whose justice administration system was (and
still is) grossly unfair, and partly due to the PNA which works
through pre-state, and by definition pre-citizenship and pre-law,
institutions to facilitate its control. That the PNA lacks
institutionalization is partly due to the "nature" of those in
power, partly due to the occupation which imposes major structural
limitations, and partly due to the society which has perpetuated
this form of government. In this vicious circle, the occupation
still stands as the only self-contained impediment.
A Civil Society
What then in this extremely complex, very formidable situation, is
the role of human-rights activists, if any?
As a matter of fact, our role is no different from that of our
colleagues in most other contexts.
First, there is the redress function. Dealing with individual cases
is extremely important. While it is very tempting, in light of the
sheer magnitude of violations, to disregard the importance of the
case-by-case approach, it is always encouraging to remember that
each successful case means a big deal to those whose rights have
been restored.
More importantly, in the "bigger scheme" of things, and in setting
up a system of respect for citizens' rights, is the role we can
play in the creation of a Palestinian civil society. At this point
in time, there is no Palestinian civil society. None could have
existed under the occupation. What we had was a liberation movement
and service providers. In dealing with the PNA, neither of these
functions is appropriate. Opposition is the role of political
parties, while service provision is the duty of the government. If
NGOs continue to play these roles, they would be doing a great
disservice to Palestinian development. They would be offering a
very convenient excuse against the development of political
parties, and for the government abdicating its duties.
Instead, human-rights organizations, like other NGOs, should start
acting like a civil society. They should start functioning as
buffers between the public and the political sphere. For this to
happen two necessary conditions should exist. First, we should tap
into the public's sentiments and needs, rather than the donors' and
"elite's" priorities. If this does not happen, we should have no
legitimacy, and would not be at all effective in convincing society
to abandon pre-state institutions in favor of, for the lack of a
better term, modern ones. Second, if we want to be called a civil
society, and if we want to have a real impact, we should engage the
PNA in a constructive dialogue. And before anyone starts screaming
bloody murder, "constructive dialogue" is a dialogue whose rules
are clearly set and which contains red lines that cannot under any
circumstances be crossed. Further, the dialogue is not conducted in
seminars and conferences, but rather through every day action and
interaction. Without this dialogue, our role would remain confined
to reactive, cosmetic action, and chances of us fundamentally
changing anything, and of us being a civil society, with all the
implications of social change that the term implies, would remain
very slim.
1. For example, see The Palestinian Independent Commission
for Citizens' Rights (1998), Third Annual Report (Ramallah: PICCR).
Also, Amnesty International (1998), Five Years Since Oslo: Human
Rights Sacrificed for Security.
2. M. Mauss, tr. by L. Cunnison, (1967), The Gift: Forms and
Functions of Exchange in Archaic Societies (New York: W.W.
Norton).
