In light of the recent unprecedented factional violence in the Occupied Palestinian Territory (OPT), Al-Haq wrote to the leadership of the two sides involved, Hamas and Fateh, expressing serious concerns over the violations of domestic and international law perpetrated by both sides, and the grave threat to human rights and the rule of law throughout the OPT posed by the instability which has arisen from the fighting. Below please find the English translations of the original Arabic letters sent to President Mahmoud Abbas and to the political leadership of Hamas on 16 June 2007.
To: President Mahmoud Abbas
Chairman of the Palestine Liberation Organisation
President of the Palestinian National Authority
16 June 2007
As a Palestinian organisation dedicated to the promotion and protection of human rights in the Occupied Palestinian Territory (OPT), namely the West Bank, including East Jerusalem, and the Gaza Strip, Al-Haq is gravely concerned by the serious risks posed by the current situation in the OPT and the impact it may have on the future of the Palestinian question. In light of you Presidential decree declaring of a state of emergency throughout the OPT on 14 June 2007, Al-Haq takes this opportunity to address its concerns to you.
Al-Haq upholds the legitimate right of the Palestinian people to freedom and emancipation from foreign occupation, as well as their right to establish an independent Palestinian State. As such, Al-Haq will continue to struggle for Palestinian citizens’ rights and freedoms under the volatile situation now prevalent throughout the OPT.
Al-Haq is deeply concerned by this unstable situation, which has resulted from the resort to arms rather than dialogue, and force rather than legal and constitutional procedures. Consequently, the OPT has been afflicted by a non-international armed conflict. Even if the outbreak of hostilities had been anticipated, such a level of bloodshed, destruction, pain and anguish caused to Palestinians civilians could not have been foreseen. This is an addition to the agony Palestinians endure as a subjugated people, suffering on a daily basis from the consequences of the Israeli occupation.
Al-Haq calls for the rigorous respect of the rules governing the declared state of emergency and urges all parties not to exploit it as a pretext to constrain and violate human rights and freedoms. The state of emergency must be supported by official directives, which should clarify and spell out limitations on, and control over, law enforcement officials in the exercise of their duties. In particular, the following limitations must be upheld:
- The provisions of the Palestinian Basic Law should continue to be enforced without exception as it is the supreme legal authority that Palestinians can resort to. Reference to this Law is also a tool to determine the legitimacy of actions and decisions issued by one of the three branches of the Palestinian National Authority (PNA). Under the Basic Law, the Palestinian Legislative Council is the sole authority that is empowered to amend, suspend or cease enforcement of its provisions.
- The Presidential decree declaring a state of emergency must clearly establish the aim of the state of emergency, the geographical scope of its applicability and its duration. Unfortunately, such criteria are not clearly spelt out in the decree.
- Article 113 of the Basic Law provides that “[t]he Palestinian Legislative Council may not be dissolved or its work hindered during a state of emergency, nor shall the provisions of this title be suspended.” Accordingly, the Legislative Council may not be dissolved and its powers and authority to monitor the state of emergency and associated measures must be respected.
- Under Palestinian legislation, the Palestinian police and security agencies are the only actors granted law enforcement powers. All other actors, no matter what their capacities, are not empowered as such and must be prohibited from exercising law enforcement functions.
- The unlawful use of weapons by any group other than authorised law enforcement agents must therefore be prohibited. In particular, Al-Haq is concerned about the actions of members of the Al-Aqsa Martyrs Brigades, some of whom have been acting as if they hold official law enforcement powers. Al-Haq also rejects the conduct and practices of the Al-Qassam Brigades and the Executive Force, who appointed themselves as rulers of the Gaza Strip, exploiting their position as the military wings of the party in power. However, this development further heightens the need not to reproduce this trend in the West Bank. The Al-Aqsa Martyrs Brigades, as well as its affiliated armed groups, must therefore be prohibited from intervening in the functions of the PNA’s military and civil institutions.
- Guarantees under the International Covenant on Civil and Political Rights safeguarding inviolable rights and freedoms under state of emergency must be respected. Of these guarantees, the most important are the obligation to respect the right to life, the inherent impermissibility of arbitrary deprivation thereof, the prohibition of torture, other cruel and inhuman or degrading treatment or punishment, and the prohibition of limitations on the right to freedom of thought, conscience and religion (and unlawful limitations on the manifestation of such freedoms).
- Members of armed factions should be prohibited from taking part in implementing the state of emergency, enforcing the law and exercising powers and duties of law enforcement actors. In this context, Al-Haq is deeply concerned about the conduct of Al-Aqsa Martyrs Brigades members, who took it into their own hands to enforce the law. In a televised statement on 15 June 2007, a spokesperson for the Al-Aqsa Martyrs Brigades announced that the Islamic Resistance Movement (Hamas) should be outlawed and called for the prosecution of any person contravening this prohibition in the West Bank. This effectively amounts to an appropriation by the Al-Aqsa Martyrs Brigades of the role and powers of law enforcement officials, who are entrusted with the power and capacity to recognise organisations, associations and parties, as well as of the functions of law enforcement, which are officially responsible for effecting accountability and administering penalties.
- Only the legitimate Palestinian judiciary should be entitled to hold individuals accountable and administer penalties, thereby guaranteeing the right to a fair trial and ensuring justice and equity for all individuals charged with violating the law. Any detention, conviction or trial outside the framework of the legitimate Palestinian judiciary should be prohibited.
- The PNA’s reluctance to apprehend members of armed factions and hold them accountable for their violations of the law has encouraged them to disrespect the PNA’s authority, as well as encroach on and attack its institutions and officials and assault Palestinian citizens and private property. Al-Haq's relentless warnings about the risks posed by the state of armed chaos and the PNA’s reluctance to hold members of armed factions accountable, including members of the Al-Aqsa Martyrs Brigades, the Executive Force and the Al-Qassam Brigades, continue to go unheeded. As a result, some parties were prompted to expand their transgressions, thereby threatening internal peace, stability, security and public order.
- Any member of armed groups who commits offences against citizens’ security and freedoms or against public or private property must be prosecuted and held accountable in order to uphold the rule of law and maintain public order.
- Appropriate official measures should be taken by the PNA to assist victims of such violations and redress irregularities.
The volatile situation in the West Bank, particularly the turning of a blind eye to the Al-Aqsa Martyrs Brigades' unlawful displays of power and self-attribution of official capacity in the PNA apparatus, including law enforcement, forebodes many further transgressions and violations. If ignored, such acts will exacerbate the situation throughout the OPT, thereby creating an uncontrollable and unpredictable state of chaos and bloodshed and furthering the cycle of acts of revenge. In view of the current fragile situation throughout the OPT, Al Haq calls on you to fulfil your role as President and to ensure the strict enforcement of the law and maintenance of public order, with no exception whatsoever.
Sincerely yours, Shawan Jabarin General Director Al-Haq
To: Mr. Khaled Mash’al
Chairman of the Political Office of the Islamic Resistance Movement (Hamas); and
The Members of the Political Office of Hamas
16 June 2007
Dear Mr. Mash’al and members of the Political Office of Hamas,
As a Palestinian organisation committed to the promotion and protection of human rights, Al-Haq believes that it is its moral and ethical responsibility to contribute to building and strengthening the democratic fabric of the Palestinian nation, which is founded on the rule of law, respect for human rights and freedoms, the values of equality, political, intellectual, and cultural pluralism and the principle of peaceful transition of power.
Al-Haq promotes the right of all Palestinians to democratic political participation and to freedom of expression of their ideas, needs, expectations, and hopes to live in peace and security in a society governed by values of respect and unity, rather than by violent waves of factional territoriality, or religious sectarianism.
In light of the recent heinous events in the Gaza Strip, it is Al-Haq’s duty to warn the political leaders of the grave risks arising from the ongoing clashes between Hamas and Fateh movements and to reaffirm its absolute condemnation of the use of force by any actor in order to pressurise and subjugate other Palestinian groups.
Al-Haq is deeply alarmed by the risks looming from the situation in the Gaza Strip and the consequences on both the democratic system in which we Palestinians believe, and on the future of our national cause including our legitimate right to self-determination and emancipation from Israeli occupation; the latter being the root cause of ongoing Palestinian suffering due to unabated violations of the fundamental rights of Palestinians, and the de facto territorial annexation of East Jerusalem and other areas of the Occupied Palestinian Territory (OPT).
The recent alarming events in Gaza culminated with the takeover of the premises and public offices of the Palestinian National Authority (PNA) by the Executive Forces and the Al-Qassam Brigades, now the self-appointed rulers of the Strip. Al-Haq expresses it serious concern to you that this may lead to grave consequences for the rights and freedoms of the Gazan population, should these forces be allowed to continue acting without restraint and without regard for the rule of law.
In fact, Al-Haq has already witnessed and documented a number of violations perpetrated by the members of the Al-Qassam Brigades and the Executive Force, including executions, wilful killings and assassinations of members of the Fateh movement. In addition, these groups have repeatedly infringed upon the dignity and human rights of members of the Palestinian security forces, such as by compelling them to remove their clothes when forcing them out of their premises.
The effective control that Hamas has now gained within the Gaza Strip places on it a positive obligation to respect human rights and freedoms, most notably the right to life and the prohibitions on implementing legal measures, such as detention, without a fair trial or judicial review; on attacking civilians; on looting and destruction of property; and on torture and all forms of cruel, inhuman and degrading treatment.
Violations and disregard for the rule of law committed by leaders and members of Hamas and other affiliated groups should be investigated and duly punished. The conduct of the abovementioned forces recorded by Al-Haq constitutes a violation of domestic Palestinian law, and as such those responsible are to be held accountable before Palestinian courts. Additionally, as the violations have occurred in the context of a non-international armed conflict, those responsible are to be held accountable under the provisions of international humanitarian law, which places upon the conflicting parties a number of minimum obligations, most notably respect for civilians and the prohibition on torture and all forms of inhuman and degrading treatment.
The volatile situation throughout the OPT and in particular the action of self-appointed authorities which have assumed and de facto exercise official functions seized from the PNA, such as law enforcement and prosecution of individuals, is foreboding further human rights violations. If ignored, such acts will exacerbate the situation throughout the OPT, thereby creating an uncontrollable state of chaos, bloodshed and furthering the cycle of acts of reprisal.
Hence, Al-Haq calls upon Hamas, as the force in effective control inside the Gaza Strip, to ensure that its members and agents uphold the provisions of international humanitarian law for non-international armed conflicts, and that the Hamas leadership holds to account those within its ranks responsible for attacking civilians, public and private property. Rigorous law enforcement is essential in order to put an end to the internal violence which is so counterproductive to the legitimate Palestinian cause, and to prevent any further attacks on the lives and human dignity of civilians.
Sincerely yours, Shawan Jabarin General Director Al-Haq