The next morning, the New York Times ran an article by Foreign Correspondent Stephen Erlanger titled “Hamas Seizes Broad Control in Gaza Strip,” in which the attacks of the “Hamas military men, many of them in black masks,” who “do not recognize Israel's right to exist” had come to “control all of Gaza City except for the presidential compound of Mahmoud Abbas of Fatah and the Suraya headquarters of the National Security Forces, the Palestinian army.” At the time of printing, Hamas had “surrounded Al Suraya, calling on the occupants to surrender.” Qassam began rocketing the headquarters, resulting in its total destruction and the surrender or slaying of everyone inside. Despite the fact that “the United States and Israel [had] worked to isolate and damage Hamas and build up Fatah with recognition and weaponry,” in less than 24 hours Hamas had total control of the Gaza strip, a massive symbolic victory that “left the White House with a dwindling menu of policy options.” Amidst a landslide of commentary from Israeli officials, the paper cited “Hamas spokesmen” who insisted “the movement had no political goal except to defend itself from a group within Fatah collaborating with Israel and the United States” and “bring the security forces under the control of the unity government.”1
Despite the insistence of the “Hamas spokesmen,” Washington and the Fatah leadership immediately denounced the outcome of the conflict as a “coup”. This charge was presented as fact by the Times for the first (and certainly not the last) time on August 2, 2007, when that journal stated flat-out that the events constituted a “coup” without employing quotation marks.2 This soon became a popular refrain throughout the mainstream US media, and subsequently the common characterization of the issue in general. However, a cautious, critical thinker familiar with the US media's record of distorting reportage on US foreign policy items in favor of “state and corporate power, which are closely interlinked, framing their reporting and analysis in a manner supportive of established privilege and limiting discussion accordingly” would ask if this is in fact so.3 More specifically, one should ask oneself if there had in fact been a “coup;” if so, in what context did this “coup” occur and to what end; if not, what did happen, and what lead the Times coverage to stray from the truth of the matter? For reasons of space and time, some of these questions are beyond the scope of this analysis. Many of them, such as the reasons for the distortion, are explored elsewhere, showing the systematic nature of the bias across cases, examining the components and sources of this doctrinal system and tracing their impact on “raw” news. For our purposes, it will suffice to simply establish the facts of the case and understand what has actually occurred between Hamas and Fatah by placing the conflict in the proper context, both before and after the Gaza takeover in June 2007.
In 2005, after the death of Yassir Arafat, Abu Mazen was elected President of the Palestinian Authority, an election in which Hamas did not run a candidate. There are varying explanations for this. Some Hamas members I interviewed insisted there had been a deal with the Fatah party by which it was agreed that Hamas would not run a candidate, so that Abu Mazen could continue the negotiations with Israel.4 However, Fatah members interviewed denied any such deal, saying that Hamas had its own reasons for not running a candidate, which remain unclear.5 Other Hamas members said they merely wanted the movement to serve an oversight function, applying pressure to the negotiations without taking an actual leadership role, while still others believe it counterproductive to legitimate the PA by taking part in its institutions.6 After the Presidential elections it was decided that a formal electoral process should be built in the Palestinian territories in preparation for the PLC elections. In order to establish the legitimacy of any such process and ensure its sustainability, Hamas would have to be included. The idea was that such a change would strengthen the Palestinian Authority by giving a broader range of interests a stake in the “governing” process and providing at least the appearance of democracy to the institution. Previously, what legitimacy the Authority had was derived from Arafat's personal charisma, the international recognition and attention afforded it, and Arafat's ability and willingness to coerce the Palestinian people to accept his rule using the repressive Security Forces. Now however, with Arafat dead, another approach was going to be needed.
Shortly after Abu Mazen's election in 2005, Hamas and Fatah reached the Cairo Agreement. Out of the agreement came the Palestinian electoral law, which apportions half of the seats of the Palestinian Legislative Council based on a system of nation-wide proportional representation, on a party-list voting system, and the other half are allotted on a district-by-district basis, with one candidate elected per district. In the latter, there is no party list, simply one individual candidate per district. This left the West Bank and Gaza divided into 16 electoral districts, which would elect 66 legislators to the PLC. The other 66 seats were to be filled by a system of proportional representation, whereby voters cast ballots for a party list. Apart from this compromise, the parties agreed to begin discussions on reforming the defunct PLO, making it more democratic and creating conditions under which Hamas can participate. The PLO Parliamentary body, the Majilis al Wattani (Palestinian National Council in English), had not met since 1996, and the office of the new PLO Chairman, Abu Mazen, was unsure how many active members there were. Even the 1996 meeting was not a true meeting; it was merely to strike the more radical elements from the charter which called for the destruction of Israel and so on, in order to make way for the “peace process” on which Arafat had embarked.
According to its bylaws, the PNC is supposed to meet annually, on an irregular basis; at the end of each meeting, the time of the next meeting is supposed to be determined.7 However, since the PNC has not truly met in decades, its exact responsibilities are unclear, many overlapping with the Majilis Tishriya, or Palestinian Legislative Council, the parliamentary body of the PNA. Furthermore, the PNC is supposed to conduct elections every three years, as mentioned in the by-laws, but they have not been held in decades.8 As a result, any meeting of the PNC is illegal according to its by-laws, as is any meeting of the Central Council, since it is elected internally from within the PNC. Once a new PNC has chosen the new Central Council, the latter should select a new Executive Committee. The non-functioning state of the PLO was addressed in both the Cairo Agreement and in the Prisoner's Document, the agreement largely authored by Marwan Bargouthi that would later become the Mecca Agreement and form the basis of the Unity Government in 2007, addressed below.
The vague connection between the PLO and PNA works to the benefit of Fatah, which is deeply entrenched in the PLO's decrepit institutions. During Arafat's tenure as its Chairman, the lack of laws or regulations delineating the relationship between the PLO and PNA as well as the vague and disorganized structure of the PLO overall enabled Arafat to assume dictatorial powers that had no basis in Palestinian law. Various actions were justified on the grounds that he was the President of the PLO, while others were undertaken in his capacity as President of the PNA.9 Since there had still not been any changes to this arrangement, leaving Abu Mazen as the head of the PLO without any constitutional or legal restrictions on his power as exercised through that office, and Fatah well ingrained in the PNC and Central Committee, Hamas had to insist on its reform and democratization before entering the organization. The problem, from the perspective of Fatah, is that if the PLO were truly reformed and restructured, allowing for the democratization of the body, the Oslo Agreements and other such arrangements with Israel would be placed in serious jeopardy, a reflection of the total lack of popular support these agreements have among the Palestinian population. This conclusion is advanced by the observation that Yasir Abd Rabu, the Secretary-General of the PLO Executive Committee and a Fatah member, did not run in the 2006 PLC elections, as he rightly realized that “even his own family would not have voted for him.”10
In any event, the 2005 Cairo Agreement brought consensus between the factions that there would be a conference in three months at which discussions on reforming the PLO would begin, agreement on an electoral system and method for conducting PNA elections, and a Hamas agreement to a hudna with Israel both to allow Abu Mazen to negotiate and to ensure that the election could take place without Israeli interference.11 The election, internationally monitored (most prominently by the Carter Administration) and universally determined to have been free and fair, took place on January 26. When the election results were released on February 1, everyone concerned, including Hamas, was stunned and surprised by the results. Out of the 132 total seats in the Legislative Council, Hamas itself captured 74, with an additional 5 held by independents who were strongly supportive of Hamas. This left Hamas with de facto control over 79 seats, nearly 2/3 of the Legislature – the percent needed to amend the Constitution. The results immediately presented a problem for US/Israeli policy. While the US and Israel had intended to allow Hamas to enter the political process, they did not want them to control it. Fatah, Israel, and the US realized that Hamas opposes the Oslo arrangements, and thus a “Hamas victory meant that the people rejected the Oslo agreements, and the corruption of the Fatah party which was resultant from them.”12 Control of the government and parliament by a group with such views could be very dangerous for Israel, as it could work against the Oslo arrangements which they had so carefully crafted. Unlike Fatah, which has evolved into a sort of loyal opposition, Hamas represents genuine resistance to the system of exploitation that Israel and United States have attempted to build in the form of the PA, the Paris Agreement, and so on. Allowing Hamas to take control of the government and PLC is to risk sabotaging everything, perhaps eventually even a new intifada. Naturally, steps would have to be taken to prevent this from happening.
According to Article 47 of the Palestinian Basic Law (Constitution) as amended in 2005, “the term of the current Legislative Council shall terminate when the members of the new elected council take the Constitutional oath,”13 to be delivered by the President. As a result of this law, the old Council is entitled to meet, after the election results are in. On February 7, 2006, just one week after the election results had been public, the old PLC declared that it would hold a “farewell session” on February 13. However, if we look at some of the decisions that were reached at this meeting, which ran late into the night, we can quickly conclude that the main purpose was to erect as many barriers as possible to prevent the incoming Hamas PLC from exercising their authority.14 The primary method of doing so was to concentrate as much power as possible in the office of the President, an office still controlled by Fatah and thus reliable.
For example, many of the Parliamentary Procedures were altered, as was the relatively new Palestinian Judicial Law. Article 5 of the latter ensured the independence of that branch by codifying a PLC ratification mechanism for judges appointed by the President, one of the key changes made in this midnight session.15 In the original version, the President, in coordination with the Cabinet, appointed judges. These nominees were then vetted through the Judicial Committee, before ultimately being put before a vote of the entire PLC. After the February 13, 2006 amendments, all power of appointment is in the hands of the President, with no oversight or ratification. Even the Ministry of Justice is denied a voice in the process. Clearly, the new judiciary left by this Fatah-dominated Parliament was not independent in any real sense. This was made possible by a weakness of the Constitution, which makes no guarantee of an independent judiciary. Instead, it merely states, “the law shall specify the manner in which the High Constitutional Court is formed and structured, the operating procedures it will follow and the effects resulting from its rulings.” Furthermore, in the original legislation, the court could review the whole array of government policy, including Presidential decrees. However, the new amendments placed the President's declarations outside the jurisdiction of the courts.16 The consequences of such a change are massive, in essence giving Presidential decrees more power than laws passed by the Parliament, since the court is still expected to scrutinize initiatives of the latter. This amendment is clearly unconstitutional, as Article 30 paragraph 2 of the Constitution states “laws may not contain any provisions that provide immunity to any administrative decision or action against judicial review.”
Apart from structural changes in the nature of the Judiciary and Parliamentary Procedures, the outgoing Parliament took the opportunity to embed as many Fatah members as possible in sensitive and powerful positions.17 This was clearly another attempt to prevent the incoming PLC from being able to function and govern effectively, concentrating power into the hands of loyal followers. For example, the PLC filled administrative and financial monitoring bureau leaderships.18 The head of the Employees Bureau, responsible for all public sector employees and overseeing hiring, firing, appointments, retirements, and so on was also approved in this final session.19 The head of the Fatwa and Legislation Bureau was also approved, who is responsible for publishing the laws passed by the PLC in the “Official Gazette,” the legal endpoint of the Palestinian Legislative Process.20 In theory, a legal argument could be made that the refusal of the leader of this bureau to publish a law would mean the blockage of the law from coming into effect.
Perhaps most importantly, the outgoing legislative council approved the recommendations of Hanan Ashrawi's Reform and Development Committee, which had been on the books since 2004.21 Originally set in motion to streamline the system and ensure that it worked properly, the results were shelved two long years, until the “farewell session” on February 13, 2006. The Ashrawi Committee had studied orders, structures, procedures, and general operations. Originally, the Secretary-General, who oversees the PLC's administrative functions, was an elected member of the Parliament, as called for by the Parliamentary Procedures. This ensured that the administrative functions of the PLC (staff, press officers, and other aides) were clearly under the charge of those who controlled the Legislature. However, in the Ashrawi Committee's opinion, there was a conflict between the service of members on the Council, under the Speaker, and effectively carrying out the administrative functions of the Parliament. So, Ashrawi recommended the separation of the political and administrative layers, with the Secretary-General to be an appointed position, without his being a member of the Parliament.22 On February 13, 2006, the outgoing PLC created an entirely new position, also to be called “Secretary-General,” and transferred all the authority of the old office of Secretary-General to the new one.23 Thus both positions still exist (legally), yet the one who is an elected member has no responsibilities whatsoever. This redundancy was necessary, since the Parliamentary Procedures clearly stipulate that the Secretary-General must be a member of the PLC, elected once by the people then again internally as part of the PLC leadership. Before long, the new Secretary-General was sitting in the office of the old.
The man that was chosen to fill this spot, Ibrahim Khrishea, is an absolute party loyalist, and can prevent the PLC administrative workers, aides, and others from carrying out any orders of the Council by threatening them with their jobs, pay, and prestige.24 His appointment is also illegal according to the Electoral Law, which clearly states that any civil servant must first resign from his position before running in the elections. If he or she should lose the elections, they must then proceed with the normal process for hiring civil servants if they desire a job in the public sector. The law expressly states that the process may not be short-circuited in any way. Ibrahim Khrishea had served as a civil servant, a position that he resigned before running for election, as the law prescribes.25 However, after losing the election, he took up the new position of Secretary-General, a civil service position, without any screening or vetting of other candidates, a clear violation of the Electoral law. This move is particularly outrageous when considered in context. Khrishea resigned his position to stand for election; then, after losing, he was immediately promoted to the top administrative position at the PLC, where he would work to block the efforts of those who had just beaten him in the election.
As mentioned above, the meeting itself was technically legal, unethical though it may be.26 Yet within the legal meeting, the proper procedures for conducting a meeting were not carried out, thus invalidating its decisions anyway. According to Article 18 of the Parliamentary Procedures, in order for a session, and thus decisions reached at that session, to be legal, a quorum must be present. To comply with Article 18, every meeting of the PLC must begin with a roll-call, to demonstrate for the record that a quorum is in fact present. Yet on February 13, 2006, no such roll-call was taken. Perhaps this is because of the rushed and frantic nature of the meeting, perhaps it is because there was in fact no quorum; since there is no roll-call on record there is no way to tell. Some PLC administrators have insisted that a quorum was not in fact present, basing their claims on video evidence.27 Either way, without a quorum the meeting cannot be legal. What was being done on this last meeting is clear: the ground was being laid for a coup, whereby the legally elected government would be obstructed from carrying out its legal duties, while as much power as possible was to be concentrated in the President's office.
As routinely is the case, Hamas' understanding of the law and its willingness to use legal arguments to assert its rights as the elected representation of the people was not to be underestimated. According to Article 20, paragraph 2 of the Parliamentary Procedures, the first item on the agenda of every meeting of the PLC is to ratify the decisions of the previous session. The reasons for this safeguard are obvious – to prevent exactly the sort of scheming that Fatah had tried to pull off on February 13. Article 19 of the Parliamentary Procedures also makes it clear that no decisions of the PLC are legal until they are re-approved at the next session. If the decisions are not approved, the Council must present a justification. After the swearing-in session for the new Council on February 18, the first session was held on March 7, at which the new Hamas Parliament did not approve the decisions reached by the previous Council on February 13.28 Their reasons were clear. There had been no quorum call, and the decision exempting Presidential decrees from judicial scrutiny was plainly illegal. Furthermore, amending the Parliamentary Procedures in such a way was unethical and possibly also illegal. Article 114 of the Parliamentary Procedures states that such amendments should originate with a proposition from the Council leadership or 1/3 of its membership, which should then be passed on to a legal committee for review. After examination of the proposed changes, the committee should submit its recommendations to the full PLC for a vote. This procedure was not followed during the February 13 session.29
As soon as the vote was counted, the Fatah Council Members walked out of the session, refusing to return for the next three meetings. Once they began to see that the government was operating without them, laws being passed, they decided to return. Upon doing so, they filed a case in Constitutional Court, claiming that the vote to discard the decisions of the February 13 meeting was illegal. Their case relied on the claim that the swearing-in session at the Muqata counted as the “next meeting,” the first of the new Parliament, and thus the session at which the decisions of February 13 must be voted on. However, the swearing-in session is referred to in the law as a “protocol session,” at which no decisions are reached. It does not take place at the Legislative Chamber, rather in the Muqata (Presidential Palace), and the only purpose is to swear the new members in. Furthermore, Article 19 of the Parliamentary Procedures requires the Secretary-General to distribute the minutes of the previous meeting at least two days before the next meeting. Since the new PLC members were not members before February 18, when they were sworn in, there was no way for them to receive these minutes, review them, and then approve or disprove them before the swearing-in session. The legal advisor to the Speaker, Dr. Isam Abdeen, prepared what was he expected to be a relatively easy case.
Yet the degree to which Fatah is ingrained in each of the PA's institutions is a constant surprise. Isa Abu Sharar, the head of the High Court, would have been pleased by the amendments to the judiciary of February 13. As a close ally of Abu Mazen, he believed that the High Court would be joined with the yet-to-be formed Constitutional Court, with a position for him at its head. Abu Sharar was thus disinclined to anger Abu Mazen, jeopardizing his position, which, thanks to the Judicial amendments of February 13, was practically guaranteed otherwise.30 All he had to do was approve the amendments. In his eagerness to please the increasingly-powerful Fatah establishment, with Abu Mazen at its head, Abu Sharar announced to the media on the very day that Hamas received notice of the case that the new PLC is not allowed to cancel the decisions of the previous one. Dr. Abdeen, the legal advisor for the Speaker, pointed out in an op-ed piece for Al Quds that Abu Sharar clearly was not going to be able to judge the case impartially.31 Without even having listened to the arguments of both sides, he had apparently reached a decision. Realizing he had made a mistake, Abu Sharar decided to step down from judging the case and gave the job to his deputy, Mahmoud Hamid. In his defense, Dr. Abdeen used the minutes of the February 13 session as well as video evidence.32 By December, Hamid ruled in favor of the Fatah party anyway, determining that it is not in the power of the new Council to invalidate decisions made by the old.
During the 9 month-long legal processes, each of the Fatah appointees in question assumed their positions, as if they had already been approved. The Hamas appointed Secretary-General, Dr. Mahmoud Al-Ramahi and Ibrahim Khrishea were routinely locking horns, each insisting he had the legal right to take on the responsibilities of the job. By the end of the case, Khrishea had won the battle, even taking over the office of Dr. Ramahi.33 As planned, he had indeed been doing his utmost to strong arm and bully the PLC staff into not cooperating with the new Hamas leadership in even the smallest task. The elected Parliamentary representatives had no staff, unable to so much as send a press release. Once assured of their privacy, many staff members told me about the threats and obstructionism from the top, particularly naming Khrishea. 2nd Deputy Speaker Aziz Dweik referred to this situation, in which Hamas had control of the political leadership of the PLC but not its administrative aspects, saying it was as if “the brain of the PLC was not connected to its body.” To make matters worse, just over three months from the time of the first meeting, on June 29th, Israel began kidnapping Council members affiliated with the Hamas party, ostensibly in response to the capture by Hamas of Israeli soldier Gilad Shalit four days before.34 Israeli soldiers broke into the homes of suspected Hamas members in the West Bank, kidnapping and jailing 50 (64 in total) and launching a large-scale military invasion of Gaza. By the time the decision was handed down from the High Court, Hamas was no longer even in the majority.
Hamas' ability to exercise authority after their election was thus almost reduced to zero by Fatah obstruction, with the full support of the United States and Israel, which embarked on a policy of reinforcing Fatah's tactics by jailing Hamas members and imposing a harsh siege, blocking most aid from entering the West Bank and Gaza and preventing the PA from being able to pay salaries or effectively operate at all. The siege, an illegal act of “collective punishment,” had the predicted effects of course; the Palestinian people suffered immensely, many lacking the basic means to survive, and became even more dependent on the Palestinian Authority and the Fatah leadership in particular. 90% of the factories in Gaza had closed by December 2007, with greater than 70% of Gaza's population now living on $2 / day or less.35 The Palestinians had committed the cardinal crime, for which people throughout the third world have paid a steep price: voting the wrong way in a free and fair election. As a result, they must be suffocated and strangled, leaving the US/Israeli-backed elites as the only ones with the power to make the pain stop. The US cynically and sickeningly took advantage of this logical outcome of dependence (highly desirable to the US and Israel), reinforcing it by allowing aid in directly to Abu Mazen and the Fatah elite, which also served to prevent the deterioration of what have become vast patronage networks. Further, they began aiding and training the PA Security Forces, which amount to little more than a Fatah militia (they are, in fact, largely composed of the Al Aqsa Brigades).36 Even before the siege began the Council building was being burned and shot at by armed Fatah groups. Mass demonstrations also occurred in the streets, celebratory revelry of masses of people outside of the Legislative building rejoicing at the new beginning offered by Hamas, the first transfer of power in the history of the Palestinian national movement.
The structure of the PNA is confusing and difficult to understand. There are two executive branches, that headed by the President and that headed by the Prime Minister. The President, directly elected by the people, has extremely limited legal power as outlined in the Constitution. Article 38 states that “the President of the National Authority shall exercise his executive duties as specified in this law,” limiting his power and authority to those specifically granted him in the Constitution. Any expansion of the Presidential powers outlined there would require a Constitutional Amendment, backed by 2/3 of the Council. By contrast, Article 63 states that “the Council of Ministers is the highest executive and administrative instrument; it shoulders the responsibility for implementing the program that has been approved by the legislative branch. Except for the executive powers of the President of the National Authority, as specified in this Basic Law, executive and administrative powers shall be within the competence of the Council of Ministers.” Clearly, the intent is for a relatively weak President, with a strong Prime Minister. According to Article 65, after being nominated by the President the Prime Minister has three weeks, plus an automatic 2 week extension if required, to form a Government (Council of Ministers). Once formed, Article 66 says the Prime Minister must then “submit a request to the Legislative Council to hold a special section for a vote of confidence,” to be held “no later than one week from the date of submission of the request.” In order to be granted confidence, the Government must receive an “absolute majority of the members of the Palestinian Legislative Council.” Article 1 of the Parliamentary Procedures clearly defines the term “absolute majority” to mean a majority of all the members of the PLC, not just those present.
The position of Prime Minister was added in 2003, to comply with the request of the “Roadmap for Peace” that the Palestinian political process needed a strong Prime Minister. This creation of this position was urged by the US and Israel, who knew that Yassir Arafat was not going anywhere, and thus tried to punish him for his intransigence at Camp David by eliminating all of his legal authority.37 The position was created especially for his crony Abu Mazen, viewed by the US and Israel as even more conciliatory than the laughable Arafat. Surely Abu Mazen would not have the gall to turn down the colonial powers on so generous an offer as was being presented at Camp David.
Another blockade the Fatah establishment tried to place on Hamas was control of the Security Forces. Naturally, the influx of US/Israeli aid to the Forces was designed to allow Abu Mazen to further concentrate power, granting him command of a well-trained and well-equipped fighting force. Essentially, there are two laws which relate to the Security Forces, the Constitution (Basic Law) and the Security Force Law. Article 84 of the Constitution states that the Security Forces' “functions are limited to defending the country, serving the people, protecting society and maintaining public order, security and public morals. They shall perform their duties within the limits prescribed by law, with complete respect for rights and freedoms.” Paragraph 2 insists flat out “the law shall regulate the Security Forces and the Police” [my emphasis throughout]. To answer this Constitutional requirement, the Security Forces law was passed by the Legislature, the third article of which divides the Security Forces into three segments: Intelligence, National Security, and Internal/Preventive Security.
Constitutionally speaking, the Internal/Preventive Security Forces should be under the control of the Interior Ministry, part of the Prime Minister's cabinet. Article 69, paragraph 7 of the Constitution makes the Council of Ministers “responsible for maintaining public order and internal security.” The only way such authority can be reassigned is through Constitutional amendment, requiring 2/3 of the vote in the Legislature. However, while Article 38 dramatically circumscribes the President's authority, Article 39 does leave him as “Commander in Chief of the Palestinian Forces.” This leaves the President in the curious legal position of possessing all legal military authority but that related to “public order and internal security.” Since the main purpose of the Security Forces is internal repression to ensure Israel's security and the continuance of PA authority over the society, the vast majority of the power could be said to fall under the Minister of the Interior. The Minister of the Interior is given authority over the Internal Security forces (who are essentially militarized police) by Article 10 of the Security Forces law as well as Article 69 of the Constitution, and the President has a degree of control over the National Security Forces and total control over the intelligence units, according to Article 14 of the Security Forces law. While the President appoints the head of the National Security Forces, according to Article 8 of the Security Force law, there can be no doubt that many of his responsibilities fall under the supervision of the Minister of the Interior. It is also important to keep in mind that the actions of the Security Forces as a whole may be reviewed by the legislature, which can pass measures to regulate their behavior. Nevertheless, the Security Forces declared their loyalty to Abu Mazen alone, using a variety of justifications to refuse any and all orders from the government. Most of the members of the Security Forces are also Fatah. The heads are high-ranking party loyalists, while the rank-and-file tend to be drawn from the Fatah militia, the Al Aqsa Brigades.
Article 11 of the Security Forces law creates the position of a Director-General of the Security Forces, to be appointed by the President and ratified by the Cabinet. Before the election of Hamas in 2006, this position had always been left vacant. After the elections, with Presidential decree of 2006 #285, Abu Mazen appointed Rashid Abu Shbak, a Fatah loyalist and ally of Mohamed Dahlan (discussed below) who was approved by Abu Allah during his lame-duck period. Furthermore, the argument could easily be made that Article 11 is actually not Constitutional, as it represents an expansion of Presidential powers beyond those specifically mentioned in the Constitution, a violation of Article 38. The Director-General serves a three-year term, which can be extended by one year, can only be removed from his position by the President, and all decisions of the Interior Minister regarding Security Forces were referred to the Director-General for review. Clearly, the reason for filling this position was to create another obstruction to Hamas' ability to exercise authority.
Because of this blockage, and the need for some Security Forces to exist outside the control of the Fatah establishment to prevent them from having de facto absolute authority, Minister of the Interior Said Siam formed the “Executive Force.” The legal basis for the creation of the Executive Forces was Article 3 of the Security Force law, which, after dividing the Forces into three segments as mentioned above, says “and any Forces formed or created should be a part of one of these forces.” The Executive Forces were created relying on this clause, and made part of the Internal Security Forces. When the force was first formed, Abu Mazen paid salaries to the 6,000 members, approving the expenditure in the budget thinking they would be under his control. However, the membership and leadership was not pulled from Fatah loyalists and militia members. Rather, the new force was loyal to the government and parliament, accepting orders from Interior Minister Siam rather than Abu Mazen. It was not until months later that Abu Mazen issued a Presidential decree declaring that the Executive Force was illegal. The Executive Force was only 6,000 strong; Fatah had control of 70,000 militiamen.
The political issue between Fatah and Hamas was whether the post-Oslo arrangements, including negotiations and a relationship with and recognition of Israel, was getting the Palestinians anywhere or whether negotiations had proven themselves to be a useless failure by the tragedy of Oslo, thus leaving resistance (protected under international law) as the main avenue by which to pursue Palestinian national interests.38 Obviously, Abu Mazen is a strong advocate of the former, maintaining a relationship with Israel and continuing negotiations in the hope that something will change, while the newly elected PLC and government of Hamas were believers in the latter. To them, Oslo had been a disaster, which had yielded nothing for the Palestinians, even leaving them in a worse position than before. They believed that Israel cannot be recognized until it declares its own borders, in compliance with the internationally recognized border (pre-1967), and must be resisted until it removes its bulldozers, settlers, and soldiers from Palestinian territory.39 The triumph of this view in the elections of 2006 is what led the United States and Israel to apply the vicious program of starvation and collective punishment known as “the siege” to the West Bank and Gaza. This is clearly reflected in the Quartet's demands for the siege to end: Hamas must recognize Israel, renounce violence, and accept all the agreements of the PLO. In other words, they must replicate the Fatah party. The only program which may be permitted for a party to hold as its platform is that which has been accepted by the United States and its allies. Since the primary reason for Hamas' popularity and election was that they did not have such a platform, they clearly could not comply.
In May 2006, after nearly two months of the siege, Abu Mazen threatened to “resolve” the issue between negotiations and resistance by taking a national poll and asking which course the majority of people prefer. Hamas objected to this maneuver on two grounds. First, the Basic Law does not give the President the authority to conduct such a poll, making it illegal according to Article 38. Furthermore, Article 5 of the Basic Law states that the form of government in the Palestinian territories is a “representative democracy,” a principle contrary to taking a direct poll on an issue. This Constitutional argument was strengthened by the fact that the previous Council had tried to amend the Basic Law to give the President the power to conduct such a poll, but the measure had failed. If the measure is legitimate, Hamas asked, why would such a measure fail, even in a Fatah-dominated Council? The second grounds on which Hamas opposed the measure were political. After the harsh effects of the siege, already under way for a significant time, Hamas was afraid what the outcome of the poll might be.40 If US/Israeli suffocation, which of course was extreme, had succeeded, the poll result would be favorable to Fatah, the spirit of resistance would have been crushed, and the majority would have resigned themselves to being “partners” with Israel as more of their land and resources were shamelessly pilfered. A strong victory for the Fatah approach in such a poll would weaken Hamas seriously, emboldening Abu Mazen and the Fatah establishment in their effort to sideline the Hamas movement from the halls of power.
Before Israeli soldiers kidnapped Hamas Speaker Aziz Dweik, he called for a national unity government, which would allow the participation of prisoners as well. In this way, Hamas members who had been kidnapped and imprisoned could still participate in the government, restoring the elected Hamas majority in Parliament. While the Fatah leadership rejected this system of “proxy voting,” not accepted in any democracy around the world, the efforts of Aziz Dweik to reach a program of national reconciliation resulted in the signing of the National Reconciliation Document in June 2006. Drafted by Marwan Bargouthi while in prison, thus earning it the nicknames the “Prisoner's Document” and the Bargouthi Initiative, it specified a political agenda which could start the Palestinian factions on a path toward national reconciliation.41 The document contains 18 items, including the principle that resistance activities should take place only within territory acquired by Israel in 1967, leaving the 78% of historic Palestine cleansed in 1948 alone.42 Furthermore, the Document called for the formation of a “national unity government” which would include both parties, ended Abu Mazen's threats to hold a national poll, and echoed the calls of the Cairo Agreement for the restructuring and reactivation of the PLO.43 Hamas believed that this document could end the siege, voluntarily giving up ministers and allowing Fatah a stronger voice in the Government. Furthermore, they hoped by restructuring and entering the PLO they could improve their relationship with other Palestinian political parties.44
Impatient with the speed of Abu Mazen's progress in eliminating the Haniyeh government, US proconsul general from Jerusalem David Walles went to Ramallah to speak with Abu Mazen, a meeting that he left without taking his script, a talking points memo prepared by the US State Department. The memo was later obtained and published by the magazine Vanity Fair.45 Telling Abu Mazen that “we believe it is the time to move forward quickly and decisively,” the plan was “for Hamas to be given a clear choice, with a clear deadline: they either accept a new government that meets the Quartet principles, or they reject it. The consequences of Hamas' action should also be clear: if Hamas does not agree within the prescribed time, you should make clear your intention to declare a state of emergency and form an emergency government explicitly committed to that platform.”46 In other words, the policy of the PNA must reflect the demands of the US and its allies. The people are completely free – free to act in accord with our wishes. The Palestinians may vote, and elect whomever they choose, as long as their choice is in line with US policy. “If you act along these lines,” the memo continued, “we will support you both materially and politically. We will be there to support you.”47 No deviation can be tolerated.
For the Palestinians, the situation continued to worsen. By September, there were violent clashes in Gaza between the PA Security Forces and the Executive Forces. Most of the conflict was over the siege, and the fact that no one was receiving a salary as a result of the total cutoff of resources. Strikes soon began, first just among civilians but soon spreading to the Security Forces. Said Siam said he would break up the strikes among the Security Forces “at any cost,” using force if necessary, pointing to Article 90 of the Security Force law which outlaws striking among the Security Forces and allowing him to deal with them as “armed disobedience.” Meanwhile, armed clashed continued in Gaza. Eventually, King Abdullah of Saudi Arabia, a close ally of the United States, called the parties to Mecca to have discussions near the Kaaba, ordering them not to leave until they arrived at an agreement. President Mahmoud Abbas and Mohammed Dahlan represented the Fatah side, while Prime Minister Ismayel Haniyeh and Khaled Mashal represented Hamas. In the end, they agreed on a national unity government, completing the request agreed upon in principle in the Bargouthi Initiative.48 The Mecca Agreement was finally signed in February, 2007, in hopes of bringing an end to the internal conflict and uniting the Palestinians to combat the Israeli occupation.
After returning from Mecca, Fatah and Hamas began a series of discussions and meetings to discuss the formation of a national unity government, which was formed by Ismayel Haniyeh on March 17, 2007. This government represented the first such government ever to exist in the Palestinian territories – Fatah had never made any such concessions during its decades-long monopoly on power. Abu Mazen strongly hinted that this move would help in lifting the siege, allowing them to “confront the siege together.” Further, the entire Arab world looked positively on the agreement, and the involvement of Egypt and Saudi Arabia, both close US allies, seemed to increase the likelihood that the United States would be willing to lift the siege after such a deal was signed. This was especially so since Hamas had given up so much, surrendering several Ministers to the US/Israeli supported Fatah party.49 The new unity government was ratified by the PLC with an “absolute majority” of the votes in a special session on March 17, 2007. 83 members voted in favor, while only 3 members objected. In keeping with the appearance of good will, Abu Mazen and the Hamas leadership agreed to postpone the beginning of the new PLC session four months, moving it from March to July. The reason announced in the Presidential decree, issued on March 5, 2007, is because of “the current circumstances of kidnapping the President of the PLC and a number of PLC members,” indicating a conciliatory approach toward Hamas and a solidarity with their members in prison. In reality, Abu Mazen was trying to buy time, while a plan for a US coup had time to mature.
Despite this apparent progress, Lieutenant General Keith Dayton, U.S. Security Coordinator for the Palestinians, had begun meeting with Gazan Mohamed Dahlan, a brutal tyrant who had been torturing and harassing the Palestinian people for decades, in November of 2006. With Abbas seemingly unwilling to dissolve the Hamas government in accordance with US wishes, they engaged Dahlan in talks for a direct partnership. And so, in the words of one State Department official, Dahlan became “our guy,” a “son of a bitch you had to support.” The plan agreed upon at that meeting was to unify all the PA Security Forces, to be provided by the US with weapons and training, under the command of Dahlan, serving in the newly-created position of “National Security Advisor.” But Dahlan's history with the US and Israel extends long before 2006. He had long “worked closely” with the CIA and FBI since the establishment of the PA and the post-Oslo order, calling George Tenet a “great, fair man” and saying that military assistance was “always delivered, absolutely” by President Clinton. In 1993, he was involved in the secret negotiations with the Israeli government that eventually became the Oslo Accords. As a result of his role in the talks, he was made the chief of what would eventually become the most feared PA paramilitary unit, the Preventive Security Force, immediately after the signing of the Oslo agreement.50
In 1996, Dahlan arrested 2,000 Hamas members in the Gaza Strip under Arafat's orders because “they were working against his interests, they were working against the peace process, against the Israeli withdrawal, against everything.” He acknowledges that what he was doing was “not popular work,” and Hamas has claimed for years that those arrested, innocent of any crime, were routinely tortured, including sodomizing prisoners with soda bottles. After the seizure of the PA Security Force buildings in Gaza, Hamas fighters discovered video tapes of fighters horribly beating and torturing abducted people, young and old, after which they force them to chant “by blood, by soul, we sacrifice ourselves for Mohamed Dahlan! Long live Mohamed Dahlan!” After Arafat refused to sign the Camp David Agreement in 2000, Dahlan began to criticize Arafat's leadership vocally. In 2002, Dahlan even refused Arafat's offer of a position as security advisor after resigning as head of the Preventive Security unit.51
Yet in 2003, he accepted the appointment by Abu Mazen as Secretary of State for Security, over the strong objection of Arafat. In Setember of that year, growing conflict with Arafat lead Abu Mazen to resign as Prime Minister, forcing Dahlan to leave as well. In 2003 and 2004, rumors surfaced that Dahlan had a private army in Gaza, trained by the US and Israel. After talks at the White House in 2003, President Bush publicly praised Dahlan as a “good, solid leader.” Meanwhile, “multiple Israeli and American officials” have claimed that Bush describes Dahlan in private as “our guy.” When Proffessor Riad al-Agha criticized the Gaza Preventive Security Force for not following the direction of Minister of the Interior Nasser Yussef, instead taking orders from “high ranking PA elements” on Palestinian television, he was arrested and only released after he publicly recanted his charge.52 In 2006, Dahlan was elected to the PLC, where he quickly developed a reputation as a Fatah hard-liner, and still retained a great deal of influence over the Security Forces.
As the situation grew desperate with the arrival of the unity government the next year, Dahlan was appointed by Abu Mazen to head the newly re-established National Security Council, a body for the existence of which there is absolutely no Constitutional or legal basis. Hamas protested loudly, as the move placed the openly hostile Dahlan essentially in charge of all security services in the Palestinian territories and obviously jeopardized the National Unity Government. While Minister of the Interior Said Siam and Prime Minister Ismayel Haniyeh served on the council, full de facto power rested with Mohamed Dahlan, serving at its head. The US plan, revealed in documents obtained by Vanity Fair was “for forces lead by Dahlan and armed with new weapons supplied at America's behest, to give Fatah the muscle it needed to remove the democratically elected Hamas-led government from power.”53 Dahlan, fearing the strength of the Executive Force and believing he was in a position of weakness, decided to wage “very clever warfare” while his militia was built up, trained, and armed. His “warfare” including kidnapping and torturing Executive Force members and their families, beating them severely, burning victims with hot pokers and often shooting them. Dahlan does not deny that torture took place under his command in Gaza.54
Despite the goodwill and wide support enjoyed by the agreement and the conciliatory attitude adopted by Hamas, the siege was not lifted; nothing changed. In addition, the failure of the Mecca Agreement to deal with the Security Force issue meant that the continued deprivation of the Palestinian people through the siege would spark renewed armed conflict, exactly what the US was trying to provoke, after tipping the balance in favor of Dahlan. Many Hamas members felt betrayed, as if they had sacrificed a lot and received nothing in return.55 The main reason why Hamas had entered the negotiations in Mecca and agreed to give up ministers was to end the siege, but the insistence of the US on maintaining it convinced Hamas that the goal of the “Quartet” - a shell serving as a multilateral veneer for US/Israeli policy – was to totally eliminate them, and they were of course correct.56 Yet people in the West Bank and Gaza did not know this as they danced in the streets in celebration of the expected restoration of national unity and end to the brutal siege. While the agreement had been welcomed by most of the world, and held vast potential to advance Palestinian national unity and the cause of Palestinian nationalism, it was sabotaged and destroyed by the US and its allies and agents. As predicted, and hoped for in Washington, things began to slide downhill in Gaza again.
Rather than lifting the siege, the US response was to increase the pressure on its allies in Fatah to drive Hamas from power. As an alternative to the unity government, the US planners outlined “Plan B,” the goal of which was to “enable Abbas and his supporters to reach a defined endgame by the end of 2007,” by which time there should be achieved a “government by democratic means which accepts Quartet principles.” Like the plan articulated by Proconsul Walles in 2006, Plan B demanded that Abbas “collapse the government” if Hamas did not change its position to the US/Israeli line. According to the plan, Abbas was then to call early elections or impose an emergency government, both of which would represent serious violations of the Palestinian Constitution. A crucial part of the plan was for Abu Mazen to maintain “independent control of key security forces” for as long as the unity government was in power, being careful to “avoid Hamas integration with these forces, while eliminating the Executive Force or mitigating the challenges posed by its existence.” A State Department document obtained by Vanity Fair, contained a detailed budget arrived at by Dahlan and Dayton for the program. What they got for the money, as summarized in the document, is a program of US support for PA militias to increase the “level and capacity” of 15,000 PA security personnel, adding 4,700 troops in seven new “highly trained battalions on strong policing.” This new army would receive “specialized training abroad,” in Jordan and Egypt, while the US would “provide the security personnel with the necessary equipment and arms to carry out their missions.” In the final analysis, the training program, salaries, and weapons amounted to $1.27 billion over five years.57
On April 30, 2007, the Jordanian newspaper Al Majd printed a leaked portion of the document, alerting Hamas to the US/Fatah coup that was impending. On June 7, the Israeli newspaper Ha'aretz reported that Israel had just authorized the largest arms shipment so far, including dozens of armored cars, hundreds of armor-piercing rockets, thousands of hand grenades, and millions of rounds of ammunition. The report put pressure on Dahlan and Dayton to begin the coup as soon as possible. The arrival of the first Egyptian-trained fighters in Gaza, with their sophisticated weapons and professional attitude, triggered the Hamas takeover of Gaza as a preemptive measure to prevent Fatah from seizing absolute power. David Wursener, Dick Cheney's Middle East advisor, resigned after the Gaza takeover on June 14, accusing the Bush Administration of “engaging in a dirty war in order to provide a corrupt [Fatah] dictatorship with victory.” Asked to talk about the Hamas coup, Wursener said “it looks to me that what happened wasn't so much a coup by Hamas, but an attempted coup by Fatah that was pre-empted before it could happen.” As Mohamed Zahar, the former Foreign Minister for the Haniyeh government, said, “the decision was only to get rid of the Preventive Security Service. They were the ones out on every crossroads, putting anyone suspected of Hamas involvement at risk of being tortured or killed.”58
Assassinations from both sides escalated. Eventually, Hamas decided it was going to have to deal with the powerful families in Gaza which opposed it, many of which had close ties to the PA Security Forces. The first family to be crushed by Hamas was the Bakr family, to make an example to others that there would be no leniency, a fate soon shared by the powerful Doghmosh family, who had kidnapped journalist Alan Johnstone.59 Four days after the Hamas takeover on June 14, the Hamas paramilitary unit, the Qassam Brigades. surrounded the Doghmosh family compound, placing a siege on their houses with two conditions. First, Alan Johnstone must be released unconditionally; second, they must surrender all their weapons. Before long, the family agreed to surrender and release Johnstone. After he was released, Johnstone held a conference with Haniyeh thanking Hamas for their effort to save him. He was then handed safely to the British consulate to take him home. The message Hamas was sending was that they will not overlook security in Gaza, that non-affiliated militias and militia violence would not be tolerated.60
Hamas began to feel their position of hegemony spread throughout Gaza, and they did not forget their enemies, those who had tortured and beaten them and their families when they were weak and small. It was not just the US, it was not just Israel, but it was Palestinians, just like them. Palestinians working for the Fatah party, working for Abu Mazen and Mohamed Dahlan. The urge to punish them, to pay them back for decades of repression was overwhelming. And Hamas did pay them back. With the Doghmosh and Bakr family down, Hamas moved to the headquarters of the intelligence forces, finding the building empty when they arrived there on June 13. In the next 24 hours, in bloody clashes throughout Gaza, Hamas eliminated the PA paramilitaries, replacing them with its Executive Force.61 From that day, the Dayton Plan was in total collapse. Mohamed Dahlan was out of the country, in Germany receiving knee surgery, along with much of the rest of the top leadership who had all found reasons to leave as the clashes intensified. They left the rank-and-file, the poor who join the Security Forces to put food on their family's table, to fend for themselves. Many were killed. The few leaders that were present took refuge in the Egyptian embassy before being allowed out by the US and Israel, desperately trying to preserve their allies. Meanwhile, in the West Bank, PA institutions, the offices of Hamas members in the West Bank, and newspaper offices were attacked and burned as Fatah moved to take full military control of the West Bank.
The very same day as the takeover, June 14, 2007, Abu Mazen, closely following a US script, put “Plan B” into effect with three Presidential decrees: the dissolution of the Haniyeh government, declaration of a “State of Emergency,” and the appointment of an “Emergency Government” headed by Salaam Fayyad. The first of the three decrees, discharging Haniyeh, is legal; Article 45 of the Constitution clearly gives the President “the right to dismiss the Prime Minister.” The second decree, “declar[ing] a state of emergency in all territories of the PNA because of the criminal war in the Gaza Strip and the seizure of the PNA headquarters and the military coup d'etat and the armed mutiny executed by outlaw armed militants against the Palestinian Authority,” is also legal. Article 110 gives the President the power to declare such a state of emergency by decree “when there is a threat to national security caused by war, invasion, armed insurrection or in times of natural disaster, for a period not to exceed thirty days,” which may be extended by an additional thirty days with the support of 2/3 of the Parliament. The third – and most important – decree, declaring an “emergency government” which was “commissioned to implement and enforce the regulations and instructions of the state of emergency” is clearly and undeniably illegal. While the Constitution does provide the President with the authority to call a state of emergency for thirty days, it does not mention an “emergency government” at any time.
In fact, if there any special powers derived from the state of emergency, they are likely reserved for the Prime Minister, head of the “highest executive and administrative implement,” and not the President. Article 38, curtailing Presidential authority to just those powers specifically delegated him in the law, clearly eliminates any claims to special power. In addition, Article 63 clearly states that “except for the executive powers of the President of the National Authority, as specified in this Basic Law, executive and administrative powers shall be within the competence of the Council of Ministers.” While Article 111 does say that “fundamental rights and freedoms” may be restricted when “necessary to fulfill the purpose stated in the decree declaring the state of emergency,” it does not say who may restrict these rights. Furthermore, this article is discussing individual rights; even when most broadly interpreted, and its powers attributed to the President (which they certainly should not be), it could not be read to include the formation of an emergency government.
The illegality of any emergency government is also clearly illustrated in Article 79 paragraph 4, which states that “neither the Prime Minister nor any of the Ministers shall assume their duties until they have obtained the confidence of the Legislative Council.” The Presidential decree creating the emergency government declaring that “the government's mandate to implement and enforce the regulations and instructions of the state of emergency shall assume its duties after it is sworn in before the President of the PNA” is thus clearly illegal. Clearly, Salaam Fayyad and his emergency government would obtain no vote of confidence, nor was it sought by calling a special session of Parliament as required by Article 66 of the Constitution. In addition, Article 110, the article dealing with the state of emergency in the Constitution, does not even mention the government. Thus we must assume that the delineation of powers between the President and the Prime Minister remain as normal, unaffected by the declaration of a state of emergency.
According to Article 65 of the Palestinian Constitution, “if the Prime Minister fails to form a government within the stated deadline or does not obtain the confidence of the legislative council, then the President of the National Assembly shall appoint another Prime Minister within two weeks.” Thus, after two weeks, Salaam Fayyad legally would have had to resign, with another Prime Minister to be presented by the President within two weeks. While this process is underway, the previous elected government continues to serve as a “caretaker government” until a new council is approved. Article 78 clearly states that “upon the completion of the term of the Prime Minister and the government, they will temporarily exercise their powers in the capacity of a caretaker government, during which they may make decisions only insofar as they are necessary for the conduct of executive affairs until a new government is formed.” This means that Ismayel Haniyeh and the Hamas cabinet were still the legal government of the Palestinian territories throughout this whole process.
Abu Mazen attempted to pre-empt this legal argument by issuing a Presidential decree to “suspend” Constitutional Articles 65, 66, and 67 titled “Formation of the Government” and “Confidence in the Government,” which discuss the process by which a new government is formed and approved. Obviously, Abu Mazen does not have the authority to “suspend” portions of the Constitution. According to Article 120, the only way the Constitution or any part of the Constitution can be changed is through a Constitutional amendment, requiring “two-thirds of the members of the Palestinian Legislative Council,” meaning an absolute majority as described earlier. According to the Constitution, Abu Mazen does not even have the authority to propose a Constitutional amendment. Article 43 only permits his decrees to be treated with the “power of law” – lesser than Constitution, lesser than Legislation - “in cases of necessity that cannot be delayed.” According to Article 43, even these Articles with “the power of law” must “be presented to the Legislative Council in the first session convened after their issuance; otherwise they will cease to have the power of law.” If the legislature fails to approve the measures, they also “cease to have the power of law.” Since the “Palestinian Legislative Council may not be dissolved or its work hindered during a state of emergency,” according to Article 113, this would occur at the next regular session of the PLC. Most importantly, again Article 38 specifically limits Presidential authority to specifically what is prescribed in the law.
The Abu Mazen administration relied on the legal rationale that since Article 113 specifically states “nor shall the provisions of this title be suspended,” it means that all other titles can be. In essence, he has flipped the actual law on its head. While the law (Article 38) prohibits all those powers not specifically granted him, Abu Mazen's argument is that the law allows all those powers it does not specifically deny him, an outrageous argument, especially since the law does explicitly deny him the power to amend the Constitution (Article 120). Even if one concedes that Abu Mazen can “suspend” articles, he did not suspend Article 79, paragraph 4 of which states that “neither the Prime Minister nor any of the Ministers shall assume their duties until they have obtained the confidence of the Legislative Council,” nor did he suspend Article 15.4 in the Parliamentary Procedures, with essentially the same language. Three days later, on June 17, Abu Mazen realized he neglected this article, and issued a decree “suspending” Article 79 as well.
He continued following the State Department's “Plan B” with few deviations. On June 16, he issued a decree declaring “the Executive Force and militias of the Hamas movement” to be “outlaws, because they executed armed mutiny against the Palestinian authority and its institutions, and anyone proven to have any kind of relations or connections with these militias shall be punished in accordance with the laws in effect and the regulations and instructions of the state of emergency.” Such a proclamation serves Plan B's request to avoid “at all costs” the integration of Hamas militia elements and the Security Forces. Direct US/ISraeli control of these forces was depended upon to keep the Palestinians under control, and Hamas could certainly not be trusted to execute such an important policy. On June 26, this decree was expanded to include “all armed militias and military formations and irregular paramilitary formations regardless of their affiliations are banned in all forms.” This broadening was most likely to ease the burden of proof on the government. With the new language, it would never have to be proven whether or not the militias confronted were sympathetic to Hamas. Units of the Fatah armed wing, the al Aqsa Matyrs Brigades, were simply integrated into the Security Forces; all other groups were targeted for elimination.
On June 23, Abu Mazen issued a decree “to dissolve the National Security Council,” which had seats for Haniyeh and Siam despite their small role. Furthermore, since the intent was to install a Fatah government, with no Hamas participation, the Council was no longer needed as an intermediary between Interior Minister Siam, Prime Minister Haniyeh, and the Security Forces. The shame day, he dismissed Abu Shbak as Director-General, a reflection of the disfavor Dahlan and his allies had fallen into with Abu Mazen. On June 17 and June 19 Abu Mazen changed the makeup of the Council of Ministers by decree, “amending the decree on formation of the council of ministers to become in the following manner.” According to Article 79, “upon a ministerial reshuffle, the addition of a minister, or the filling of a vacancy, for any reason, the new minister or ministers shall be presented at the very next session of the Legislative Council, which shall occur no later than two weeks from the date of the reshuffle or the occurrence of the vacancy, for a vote of confidence in accordance with the provisions of this article.” In the maximum two week period during which this nominee is waiting for parliamentary approval, he may not assume his duties “until they have obtained the confidence of the Legislative Council.”
In June, the four-month period during which the parties had agreed to suspend the functioning of the PLC came to a close, and acting speaker Ahmed Bahr, together with ¼ of the members in accordance with Article 16 of the Parliamentary Procedures, issued a call on March 4 for the commencement of an “abnormal session” to take place on June 5. Realizing what was happening, the next day Abu Mazen called a normal session for July 11. According to Article 16 of the Parliamentary Procedures, a normal session, to be called by the President, can only begin in March, during the normal Parliamentary period which spans from March to March. Otherwise, it must be an abnormal session, called by the Speaker together with ¼ of the Legislative Council. The important difference is that during an informal session, the PLC leadership remains the same as it was during the last normal session, no new internal elections take place until the next Parliamentary period the following March. During a normal session, however, the internal leadership is changed, and new internal elections are held. Fatah was hoping to oust the Hamas PLC leadership as well, not realizing what the postponement of the PLC session for four months would mean for this goal. Since any government required the ratification of an absolute majority of the members of Parliament, Fatah could not unilaterally place a government in power without the collaboration and agreement of Hamas. As they had already agreed to one unity government, surrendering ministers, the odds that they would voluntarily concede to total Fatah domination were slim. Since the Hamas PLC leadership could not be eliminated, Fatah began boycotting the PLC from meeting at all, depriving that body of the quorum needed to begin a session.
After the thirty day state of emergency expired on July 13, Fayyad resigned as Prime Minister of the emergency government. On July 14, Abu Mazen wrote him a letter in return, accepting his resignation and thanking him “for all your efforts and dedication.” Then the letter charges him with two tasks. First, the “formation of a new government through following the necessary legal procedures.” But Abu Mazen had “suspended” all the articles outlining the “necessary legal procedures” for the “formation of a new government.” With articles 65, 66, 67 and 79 suspended, there was no legal process left regulating the establishment and approval of a government. The second task Abu Mazen put upon Fayyad was for his “current government to continue functioning as a caretaker government in accordance with the provisions of the amended Basic Law of 2003.” Since it was never approved by the PLC in the first place, there is no way that the government of Salaam Fayyad could continue as a “caretaker government,” as outlined in Article 78 of the Constitution. Rather, the unity government lead by Ismayel Haniyeh remained the legal “caretaker” government, according to Articles 78 and 83.
Just three days after his resignation, Salaam Fayyad sent a letter to 1st Deputy Speaker Ahmed Bahr that said: “relating to the above mentioned subject [a request for conducting a special PLC meeting to ratify the government], and based on the provisions of paragraph 1, Article 66 of the Palestinian law of 2003 and its amendments, we would like to request conducting a special meeting to ratify the thirteenth government. Please provide us with the suitable date to conduct such a meeting during the Constitutional period.” It is interesting, of course, that Fayyad mentions Article 66, which was suspended by Abu Mazen only a month before, allowing for Fayyad to serve as Prime Minister in the first place. Fayyad's intent with the letter had been to humiliate the PLC, expecting Bahr to ignore the letter because all of the Hamas members were in prison, and thus they were no longer in the majority, or because of Abu Mazen's brazen series of crimes (Article 22 states that “any violation of any personal freedom, of the sanctity of the private life of human beings, or of any of the rights or liberties that have been guaranteed by law or by this Basic Law shall be considered a crime”). His expectation was for the illegally appointed government to go on with its work, with the PLC leadership refusing to hold a vote. Once again, the legal shrewdness of Hamas should not be underestimated.
To Fayyad's surprise, Bahr replied the very next day:
"The Presidency of the Palestinian Legislative Council would like to present its warmest regards. Related to the above mentioned subject [your letter dated 16/7/2007 concerning a request for conducting a special PLC meeting for conducting a special PLC meeting to ratify the government], we would like to inform you that a decision was reached concerning conducting a special PLC meeting to ratify the government based on the legal procedures of the amended Basic Law of 2004 and according to the PLC bylaws. The meeting will be held Sunday, 22/7/2007 in both PLC headquarters of Gaza and Ramallah at eleven o'clock.”
Article 66 of the Constitution says that the special session to vote on the government must “be held no later than one week from the date of the submission of the request.” Bahr chose the last legal day to hold the session, July 22.
On July 22, all 45 of the Fatah members showed up, expecting to vote in the affirmative and easily confirm the Fayyad government, all the Hamas members who were not imprisoned were also present, though in the minority. It was clear no Hamas member would vote in favor of the Fayyad government. What Fatah had neglected was that they needed an absolute majority in order to approve the government, not a simple majority of those present. This meant that 67 members had to vote in favor of Salaam Fayyad's government in order for him to legally take power and begin work as the Prime Minister, more ministers than Fatah had. Thus Fatah did not have the legislative ability to place Salaam Fayyad in power without cooperation from Hamas. Realizing this, the Fatah members immediately walked out of the meeting, boycotting the Parliament. Fayyad, who got word of what was happening before entering the chamber, was seen walking around outside of the PLC building, refusing to enter.
In accordance with Article 65, which states that “if the Prime Minister fails to form a government within the stated deadline or does not obtain the confidence of the Legislative Council, then the President of the National Authority shall appoint another Prime Minister within two weeks of the passing of the deadline or the date of the confidence session, whichever applies.” The deadline had both run out and Fayyad had failed to receive a vote of confidence from the Parliament. This meant the President had to appoint another Prime Minister within two weeks, meanwhile Haniyeh and his government should continue to function as a “caretaker government.” Fayyad's letter said that he wanted to form his government “based on the provisions of paragraph 1, Article 66 of the Palestinian Basic Law of 2003 and its amendments.” The Presidential letter, requesting Fayyad to form his government, has asked him to do it in accordance with the law as well. Bahr simply asked them to keep to their word, and present a new Prime Minister within two weeks. Every day that Fayyad executes the duties of Prime Minister he is doing so in clear violation of the law.
In preparation for the next PLC elections in 2010, Abu Mazen made a decree which will ensure that the elections remain under control, as outlined in Plan B. The first decision of 2007, containing more than 100 articles, was a series of amendments – by decree – to the 2005 electoral law. It shifted all of the voting to the list system, eliminating entirely the district-based system which had been more favorable to Hamas. Second, the new electoral law demands that any person who wishes to run for office must “recognize all prior commitments of the PLO,” submitted in writing to the Central Elections Committee. Naturally, it is talking about the post-Oslo order. The acting Speaker, Ahmed Bahr, issued a protest on behalf of the PLC to Abu Mazen's flaunting of the whole of the legal process. First, the speaker said:
This decision constitutes a flagrant violation of the nature of regime in Palestine, which is based on political and party pluralism, confirmed by the text of Article 5 of the amended Basic Law, because it calls for the expulsion of wide sectors of the Palestinian people, who do not support the Oslo Agreements, from participating in general elections and decision making. It also forfeits the rights and public freedoms guaranteed in part two of the amended Basic Law. Such a method could only be exercised under the most oppressive totalitarian regimes.
This decision causes clear and explicit discrimination between Palestinians because of "political opinion" in exercising their constitutional right to participate in political life and general elections, which constitutes a flagrant violation of the provisions of Article 9 of the amended Basic Law, which emphasizes that Palestinians are equal before the law and forbids discrimination among them on grounds of political opinion.
This decision is in violation of the Constitutional requirements set out in Article 43 of the amended Basic Law, concerning resolutions that have the force of law, especially since the constitutional provision in question underlines the need for the issuance of such resolutions in case of necessity, which brooks no delay. It means that the "state of necessity" alone is not enough to justify the issuance of any decision with the force of law, but this necessity must be absolutely of "intolerable delay" as confirmed in the text of Article 43 of the amended Basic Law. If so, what is the necessity that brooks no delay whatsoever in this resolution, if the coming legislative elections will be conducted in 2010 as confirmed in the provisions of Article 47 of the amended Basic Law of 2003, and its amendments? Therefore, this resolution is invalid constitutionally since the basis on which it is built is invalid.
The fourth point simply insists on the supremacy of actual law and the Constitution over Presidential decrees – even those with “the force of law.” The fifth points out that the decree is in fact self-contradictory, as it “obliges the candidate... to follow the amended Basic Law,” the principles of which are directly contrary to the amendment, explicitly allowing freedom of opinion and representation, and outlawing discrimination based on political opinion. The sixth point of the Speaker's condemnation charges that the decree steps beyond the Constitutional oath of the President outlined in Article 35 of the Basic Law, as well as violating the constraints on Presidential Authority placed by Article 38 and 63. It also infringes on the rights of the PLC as the “elected legislative authority,” as described in Article 47 of the Basic Law. The speaker also points out that the declaration is a violation of the Cairo and Mecca Agreements, as well as the principles of the National Reconciliation Document. To Bahr, the decrees of Abu Mazen were issued “without a national consensus, with a view to consolidate the concept of authoritarian rule instead of striving toward democratization and respect for the rule of law, and the principle of separation of powers as well as general concepts of good governance.” Finally, and perhaps most importantly, Bahr stated that
the signing of this decision that has the power of law, after all the previous warnings launched by the PLC President of its gravity and blatantly aggressive nature to the Basic Law and the entire political system, can only be interpreted as a clear attempt to disrupt the forthcoming Presidential elections at the scheduled constitutional time with the aim of staying in control forever.
Hamas will not agree to having the elections conducted on such terms in the Gaza strip, while Fatah will insist in the West Bank. Hamas will refuse to run if the elections are conducted in such a manner, leaving Fatah in control of the PLC and government. However, the government in Gaza is likely to continue, and it cannot wait in the stasis of “caretaker” forever. Soon, Gaza will have to move forward, and when that time comes the opportunity for easy reconciliation will have passed, the PA will be divided permanently. Gaza will then hold their own elections, forming a separate government and a separate leadership.
Furthermore, according to Article 36 of the Constitution, the “term of the Presidency of the National Autority shall be four years”; but according to Article 2 of the Electoral Law, the Presidential election should be in 2010, concurrently with that of the Parliament. As the reader will no doubt already understand, in the event of a conflict between the Constitution and any law, the Constitution is superior and the law is set to be corrected. However, it is extremely unlikely that Abu Mazen will hold elections next January, as he would be risking a Hamas President, reinforced by the Hamas leadership in Parliament. The call for a normal session would be withdrawn, the abnormal one would go forward. The illegal government of Fayyad would be recalled. In short, the government would act in accordance with the principles of representative democracy, by contrast with the authoritarian implementation of US policy by Abu Mazen. Since it is unlikely that Abu Mazen will hold elections, his position is likely to be declared “vacant” by Hamas in accordance with Article 37, paragraph 2 of the Basic Law. If the Office of the President should become vacant, the Speaker of the Parliament becomes President. Once Abu Mazen refuses to hold elections in 2009, it is likely that Bahr will be proclaimed President of the PNA by Hamas, serving in Gaza while Abu Mazen continues in the West Bank. According to Article 97 paragraph 2 of the Electoral Law, the “provisional Presidential term shall finish after the announcement of the final election results and immediately after the elected President takes a legal oath in accordance with the provisions of the Basic Law.” Once Bahr fills this position, the Palestinian territories will have reached total separation.
Just as the new electoral “law” will prevent those who disagree with Oslo, such as Hamas, from entering elective office in the PA, the refusal of the PLO leadership to reform the organization in accordance with the principles outlined in the Prisoner's Document will prevent those with such a view from entering the PLO, or at least changing its platform and agenda. If the PLO were to be restructured and reformed, the very foundations of the post-Oslo order in the West Bank wold be in jeopardy, as the majority would now be opposed to these arrangements. Oslo, as the core of the PLO platform, would be finished. At the infamous PLC “farewell session” of February 13, 2006, a decision was reached that all members of the PLC would also automatically become members of the PLO (Hamas, of course, refused to approve this decision with the rest on the first meeting of the new PLC). One hypothesis is that there is an attempt to integrate the PLC with the PNC, or at least to manipulate and tie the hands of the PLC using the dysfunctional PLO apparatus. The goal of preventing the reform of the PLO, but increasing integration with the PLC, is the same as amending the election law by decree – to assure the preservation of the post-Oslo arrangements in the Palestinian territories. If these agreements are disregarded, the whole class that is now in control of finance, economics, and politics will also collapse. Hamas, for its part, has repeatedly stated its willingness and desire to enter the PLO on the terms outlined in the Prisoner's Document and Cairo Agreement.
While what happened in Gaza is frequently described in the press as a “coup,” a close look a the events and policies both before and after June 14, 2007 reveal a deliberate attempt to concentrate power into the hands of Abu Mazen and the Fatah establishment. By sidelining Hamas and disregarding all Palestinian law, Abu Mazen has created a dictatorship which he rules by fiat, with no oversight and no democratic competition. The Presidential decree of July 2007 officially establishes Abu Mazen's rule as a military dictatorship, transferring all power of prosecution to a “military prosecutor,” and empowering special “Military courts.” The only policy allowed to be presented in elections from now on is the US/Israeli policy of the Oslo Accords, which serve to keep the Palestinians under the control of leaders like Abu Mazen while the Zionist project continues its seemingly unstoppable expansion, stealing Palestinian land and resources and crushing their national aspirations. Apart from the actions in Gaza in June 2007, which were clearly a reaction to the aggressive behavior of Fatah undertaken at the urging of the US and Israel, the positions and attitude of Hamas indicate a willingness on behalf of that party to act in accordance with established, codified legal norms in Palestine as well as on the basis of existing agreements between the parties. Fatah, by contrast, has shown no such willingness; closely adhering to the US policy of marginalizing Hamas and creating an authoritarian dictatorship.
1. Erlanger, Stephen. “Hamas Seizes Broad Control in Gaza Strip,” New York Times, June 14, 2007.
2. By June 16, 2007, this charge had already surfaced in the Times (see Kershner, Isabel “On West Bank, a Show of Force by Fatah.” New York Times, June 16, 2007). By August 2, the Times was presenting the “coup” as a point of fact, dropping the quotation marks around the word: “Mr. Abbas of Fatah has been seeking to consolidate his power since a June coup left the rival Hamas movement in power in the Gaza strip.” Further, US aid to the Fatah party and the illegally appointed PM, Salaam Fayyad, was presented as support for “democracy,” leaving the Hamas party as the inverse (Cooper, Helene and Steven Erlanger, “Rice Backs Appointed Palestinian Premier and Mideast Democracy” New York Times, August 3, 2007). Even the nototoriously critical Vanity Fair piece, which describes how the US and Israel backed a military leader in Gaza who tortured and killed unknown numbers of people in Gaza, also leads by talking of how Hamas “seized power in a bloody coup d’état in June 2007.” Rose, David. “The Gaza Bombshell,” Vanity Fair, April 2008.
3. Chomsky, Noam. Necessary Illusions, South End Press, 1989. pg. 10. Noam Chomsky and Edward Herman's “Propaganda Model,” familiar to all students of media criticism, supports this assertion most persuasively. No viable challenge currently stands against it, and it has been tested and substantiated with literally “thousands of pages of documentation supporting the conclusions” (pg. 10). As Chomsky writes, “by the standards of the social sciences, it is very well confirmed, and its predictions are often considerably surpassed. If there is a serious challenge to this conclusion, I am unaware of it” (pg. 10). The model has been extensively tested by Chomsky, Herman, and others. For an outline of the model, and a number of case-studies, see Chomsky and Herman's Manufacturing Consent. Further indictment of the performance of the US media in reporting on foreign policy, undertaken without using the Propaganda Model, can be found in Howard Friel and Richard Falk's 2004 study The Record of the Paper; see also their 2007 study focused specifically on reportage of the Israel-Palestine conflict, Israel-Palestine On Record.
4. Bittawi, Sheikh Hamid. Personal Interview. 17 June 2008.
5. Yazpak, Rami. Personal Interview. 18 June 2008.
6. Odrawi, Adnan. Personal Interview. 16 June 2008.; Daraghmeh, Dr. Ayman. Personal Interview. 14 July 2008.
7. “PLO Bylaws.” Amended 1996.
9. Aburish, Said K. Arafat. 1999, Bloomsbury Publishing.
10. Abdeen, Dr. Issam. Personal Interview. 24 July, 2008.
11. Mecca Agreement. 2005.
12. Abdeen, Dr. Issam. Personal Interview. 24 June 2008.
13. Citations from the Basic Law, Presidential Decrees, and other laws shall be given in-text, thus not included in footnotes.
14. Minutes. The Palestinian Legislative Council, The exceptional term, Second session. Conducted in both Ramallah and Gaza, Monday 13/2/2006 . Resolution (A1/2/1007)
22. Yazpak, Rami. Personal Interview. 17 June 2008.
23. The Palestinian Legislative Council, the exceptional term, Second session. Conducted in both Ramallah and Gaza, Monday 13/2/2006. Resolution (A1/2/1007)
24. This is a personal observation of mine during my two months working at the PLC.
25. Khrishea, Ibrahim. Personal Interview. 16 June, 2008.
26. It is also, of course, important to remember that several of the decisions reached are themselves illegal
27. Odrawi, Adnan. Personal Interview. 16 June, 2008; Abdeen, Dr. Issam. Personal Interview. 29 June, 2008.
28. Minutes. The Palestinian Legislative Council. The first ordinary cycle-first term, First session, Conducted in both Ramallah and Gaza, Monday and Tuesday 6-7/3/2006 . Resolution (1/1/1018)
29. The Palestinian Legislative Council, the exceptional term, Second session. Conducted in both Ramallah and Gaza, Monday 13/2/2006. Resolution (A1/2/1007)
30. Yazpak, Rami. Personal Interview. 18 June, 2008.
31. Abdeen, Dr. Issam. Personal Interview. 2 July, 2008.
33. Khrishea, Ibrahim. Personal Interview. 16 June, 2008. Nimr, Said. Personal Interview. 6 July, 2008.
34. While widely characterized as a “kidnapping” in the American and Israeli press and in official statements, according to the 3rd Geneva Convention the capture of Shalit is absolutely not a kidnapping. However, the Israeli “response,” namely breaking into the homes of members of suspected Hamas members and abducting them, is in fact kidnapping.
35. Rose, David. “The Gaza Bombshell,” Vanity Fair, April 2008.
37. Abdullah, Dr. Abdullah. Personal Interview. 19 June, 2008.
38. Fathi. Personal Interview. 26 June, 2008.
39. Bittawi, Sheikh Hamid. Personal Interview. 17 June, 2008.
41. “The 18-Point National Conciliation Plan Drafted by Senior Palestinian Detainees in Israeli Jails.” 11-05-2006.
44. Bittawi, Sheikh Hamid. Personal Interview. 17 June, 2008.
45. Rose, David. “The Gaza Bombshell,” Vanity Fair, April 2008.
48. “The 2007 Palestinian Unity Government.” February, 2007.
49. Bittawi, Sheikh Hamid. Personal Interview. 17 June, 2008.
50. Aburish, Arafat.
51. Rose, David. “The Gaza Bombshell,” Vanity Fair, April 2008.
55. Bittawi, Sheikh Hamid. Personal Interview. 17 June, 2008.
57. Rose, Vanity Fair
59. Daraghmeh, Dr. Ayman. Personal Interview. 16 July, 2008.
60. Bittawi, Sheikh Hamid. Personal Interview. 17 June, 2008., Daraghmeh, Dr. Ayman. Personal Interview. 16 July, 2008.