Amira Hass: Two Non-States

Who says there is no cooperation between the Palestinian Authority/Fatah and Hamas? Indeed, ever since June the two sides have been working energetically, in a kind of pas de deux of demonstrative pirouettes, so that the Gaza Strip will become another quasi-state entity with its three governing authorities - executive, legislative and judiciary - separate from those in Ramallah. All three branches are acting outside the delegated powers of the PA president, with the help of a separate police force and a system of taxation, collection and other payments. Two non-states for one people.

There are already two governments, as everyone knows. The legality of each of them is questionable to an equal extent. The Legislative Council, which no one talks about anymore, is not convened as such, but Hamas representatives in Gaza (many of those from the West Bank are imprisoned in Israel) have met for a few symbolic discussions, which have no connection to legislation. The important thing is that they meet separately, without the videoconferences between Ramallah and Gaza by means of which past council meetings were conducted. And now the creation of a separate judicial authority in Gaza has also nearly been completed.

Immediately after the Hamas takeover of the security organs in Gaza in June, Palestinian Authority President Mahmoud Abbas suspended, using executive orders, the work of the judiciary and law-enforcement systems there. It is possible to see this as a legitimate step against the de facto putsch carried out in the Gaza Strip. However, legal experts and human rights organizations in Gaza warned him that by so doing, he was paving the way for the establishment of a separate court system. How right they were. Abbas ordered the police to stay home (and get paid for not working), and he forbade the judges to work in cooperation with the police force that Hamas established, having no alternative. Abbas suspended the work of the General Attorney in Gaza, Hamas appointed substitutes, and afterward it set up "The Supreme Justice Council" to run the court system and appoint judges instead of the PA's "Supreme Judicial Council." This body was ordered not to accept official documents issued by Hamas ministries and not to charge court fees so that the money would not go to the government coffers in Gaza.

The peak came at the end of November, when the Supreme Justice Council took over the court building in Gaza and informed the 48 judges that thenceforth they were under its authority and not the authority of the Supreme Judicial Council. The seven "Hamas judges" are the only ones working at present, and since there are no restrictions on them, they can at least conduct urgent trials as in cases of murder and robbery. Thus the final impression is that Hamas is more efficient than the PA. The initial responsibility of the PA in Ramallah is not in doubt. After all, Palestinian judges continued to work with the occupation authorities, so why shouldn't they also work in a reality of Hamas rule, for the sake of the public? And after all, before the military takeover Hamas won a majority in real democratic elections. That said, the Hamas government has also avoided alternatives such as seeking aid from independent jurists and human rights organizations to persuade Ramallah to put an end to the paralysis of the courts.

By establishing a separate judiciary authority, the Hamas government is denying this body its independence, relative though it may be. (This independence has been prominently manifested in intervention by the Palestinian courts in illegal measures the PA takes against Hamas activists.) It transforms the court system into a branch of a political body and in effect eradicates Palestinian law, which in a situation of geographical non-contiguity has been one of the strongest factors unifying the Palestinian people. Hamas is determined to prove that Islamic rule can function even in the most difficult conditions.

In this way it is trashing all Palestinian achievements as though they were propaganda of the rival party. Before the 1996 elections, when he was the prime minister, Shimon Peres, now the president of Israel, proposed to Yasser Arafat that he declare the establishment of a Palestinian state in the Gaza Strip (and autonomy in the West Bank), as a prelude to negotiations with Jordan on the establishment of a Gaza-Jordan confederation. Today, the two Palestinian "governments," anathema to each other, are implementing what Arafat was wise enough to reject.