In the aftermath of the attacks on the World Trade Centre in 2001, there is renewed focus on issues of law and good governance in the Middle East. The Palestinian National Authority (PNA) is being accused of governing through patronage and violence and ignoring the rule of law. The promotion of legal processes in the occupied Palestinian territories is seen as a key element in the creation of a stable, democratic and accountable Palestinian policy to be able to negotiate lasting peace with Israel. However, legal reforms would be nothing more than a technical solution to the problem, if other issues of territorial sovereignty are ignored.

An article from the London School of Economics argues that it is unrealistic to expect effective legal processes in Palestine without first establishing territorial sovereignty and a degree of unity and organisation at the central authority. In the West Bank, the efforts to introduce legal processes are obstructed not because they are inefficient procedures or culturally inappropriate, but by the powerlessness of the law enforcement authorities.

At various stages, the political situation in Palestine resulted in breaking up the power of the judicial and law enforcement authorities:

• Following the Israeli occupation in 1967 many Palestinian lawyers were on strike in protest against it.
• Although Israeli military tribunals were technically required to deal with ‘security matters’, they soon became involved in taxation, land disputes and other civil and criminal issues.
• During the first uprising (intifada) in the late 1980s, calls to boycott the Israeli military courts led to establishment of dispute forums: the decisions taken here were enforced by armed groups associated with the resistance movement.
• The peace process between Israel and Palestine co-ordinated by Norway (called the Oslo peace process) enabled the PNA to take control of the West Bank court system but Palestinians were not given any role in Israeli military tribunals, courts in Israeli settlements or rabbinical courts.
• After the Oslo peace process the PNA was only allowed civil and security control in specific areas in and around major cities, orders of Palestinian courts were unenforceable in most parts of the West Bank.

The fragmentation was intensified because the Oslo peace accord established six Palestinian police forces, which had links with the pre-PNA armed groups. One of the elite branches of the PNA police is a branch of the group of bodyguards who protected Yasser Arafat during the years of the Lebanese civil war. Also, a key force controlled by the Fateh faction has focused on detaining Palestinian activists hostile to the Oslo process.

The main experience of legal rights in the West Bank has come from Israel - an occupying state which has inflicted violence itself. Legal processes therefore do not have moral value in and of themselves.

What will it take to build an effective legal system in the West Bank that responds to the needs of the Palestinian people? The research suggests that those who wish to see the rule of law in the West Bank should recognise that:

• Developed legal systems depend on their power to be able to enforce law.
• Territorial and organisational fragmentation of the law in the West Bank means that legal claims lack stable backing and force people to turn to potentially less accountable forums for the enforcement of their legal claims.
• A centralised authority that has a monopoly on control (i.e. power and ability to enforce laws), is necessary for the fulfilment of legal promises.

Without a stable and centralised foundation, both the substantive and procedural elements of legal processes are unobtainable. Strong states produce effective law, not the other way around.

Source(s):
‘Access to justice; the Palestinian legal system and the fragmentation of coercive power’, Crisis States Working Paper No. 41, by Tobias Kelly, March 2004 Full document.

Funded by: Economic and Social Research Council (ESRC), Royal Anthropological Institute

id21 Research Highlight: 18 November 2004

Further Information:
Tobias Kelly
John Adams Research Fellow
Centre for Socio-Legal Studies
University of Oxford
Manor Road
Oxford OX1 3UQ

Tel: +44 (0) 1865 284248
Fax: +44 (0) 1865 284221
Contact the contributor: tobias.kelly@csls.ox.ac.uk

Centre for Socio-Legal Studies, University of Oxford UK

Other related links:
'Containing conflict: a donor perspective'

'Making law matter'

'Regimes Reinventing Themselves: Constitutional Development in the Arab World' from the Institute of Social Studies (ISS)

'Law, Coercion and Dispute Resolution: The Fragmentation of the Palestinian Legal System from the Oslo Peace Process to the Intifada, London School of Economics (LSE)

'Human Rights in Israel/Palestine: The History and Politics of a Movement' from the Journal of Palestinian Studies

'Toward a Heuristic Model of Elite and Institutional Change under Conditions of Conflict, with Illustrations from Palestine' from the German Institute for International and Security Affairs