Islamic Hamas and Secular Fatah: How Does the Governing Process Work?

Author:Shadi Alshdaifat - Sanford R. Silverburg
Position:Isra University, Faculty of Law, Amman, Jordan - Department of History and Politics, Catawba College, Salisbury, NC
Pages:583-649
SUMMARY

The goal of the Palestinians in their conflict with Israel is to gain national self-determination through a two-state solution. To accomplish this goal it is necessary for the Palestinians to create a singularly viable governing system in order to negotiate with Israel as a "partner for peace". We endeavor to provide an examination of the Palestinian governing system under the Palestine Authority ... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2015 e Institute for Migrant Rights Press
583
Islamic Hamas and Secular
Fatah
H D  G P W
shadi alshdaifat
Isra University, Faculty of Law, Amman, Jordan
sanford r. silvErburg
Department of History and Politics, Catawba College, Salisbury, NC
E-mail: ssilver@catawba.edu
e goal of the Palestinians in their conict with Israel is to gain national
self-determination through a two-state solution. To accomplish this goal it is
necessary for the Palestinians to create a singularly viable governing system in
order to negotiate with Israel as a “partner for peace.” We endeavor to provide an
examination of the Palestinian governing system under the Palestine Authority
(PA), operated by Fatah in the West Bank and Hamas, its main opposition,
in the Gaza Strip. Underlying the conict between the two major political
parties, Fatah and Hamas, it is pointed out, that following international legal
principles of uti possidetis and the doctrine of postliminium, it is necessary for
belligerents to negotiate the change in the status of conicted territory resulting
from armed conict. Negotiations between Israel and the Palestinians requires
the latter to create a unied government which has its challenges internally
and externally. ere is, additionally, the tension between Islam and its role
in governance versus a purely secularist approach. An analysis of the situation
is presented along with a discussion of governance and its requirements in any
future Palestinian state and its outlook.
Keywords: State-Building, Law and Religion, Conict Resolution, Local
Governance, Peacebuilding.
The Indonesian Journal of International & Comparative Law Volume II Issue 3 (2015) at 583–649
Alshdaifat & Silverburg
584
[W]hen you bring in the religious dimension, it absolutizes the
conict—you can divide land . . . but the sacred is indivisible.
Moshe Halbertal1
I. INTRODUCTION
e emergence of an Arab, Palestinian state after its Declaration of Inde-
pendence in Algiers in 19882 is again further documented by the eorts
in the Oslo Accords,3 discussed below, with the conclusion of the Decla-
ration of Principles (DOP) in 1993,4 followed by the Agreement on the
Gaza Strip and the Jericho Area,5 the Protocol on Economic Relations,6
the Interim Agreement on the West Bank and Gaza Strip,7 the Agreement
1. Jodi Rudoren, A City’s “War of Neighbors,” in which the Dierences Are not
Negotiable, N.Y. T, Nov. 19, 2014, at A8. Halbertal is a noted philosophy
professor at e Hebrew University of Jerusalem.
2. Palestine National Council, Declaration of Independence, 43 GAOR Annex 3
(Agenda Item 37) at 13, U.N. Doc. A/43/827, S/20278 (1988), reprinted in 27
I.L.M. 1668 (1988) [hereinafter Declaration].
3. For a general discussion of the background and importance of the Oslo Accords
see G R. W, T O A: I L  
I-P P A (2000).
4. Declaration of Principles on Self-Government Arrangements, Sept. 13, 1993,
Isr-PLO, 32 I.L.M. 1525 (recognizing the statement by the Palestine National
Council, Declaration of Independence, Nov. 15, 1988, U.N. Document A/43/827,
S/20278, Nov. 18, 1988, reprinted in 27 I.L.M. 1988 [hereinafter DOP, Oslo I].
e DOP also established e Interim Self-Government, the Palestinian Authority
(hereinafter PA) (Harakat at-arir al-Wataniyyah al-Falastiniyyeh), separate from
the Palestine Liberation Organization (hereinafter the PLO) that continues to be
the legitimate representative of the Palestinian people). A useful analysis of the
PLO’s origin can be found in Anis F. Kassim, e Palestine Liberation Organization’s
Claim to Status: A Juridical Analysis Under International Law, 9 D J. I’ L.
 P’ 1 (1980).
5. Israel-Palestine Liberation Organization and the Jericho Area, May 4, 1994, Isr.-
PLO, reprinted in 33 I.L.M. 622 [hereinafter Gaza-Jericho Agreement].
6. Protocol on Economic Relations between Israel and the P.L.O., reprinted in 33
I.L.M.696 [hereinafter Paris Protocol].
7. e Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, Sept.
28, 1995, Isr.-P.L.O., reprinted in 36 I.L.M. 551 [hereinafter Interim Agreement,
Alshdaifat & Silverburg
Islamic Hamas and Secular Fatah
585
on the Preparatory Transfer of Powers and Responsibilities between Is-
rael and the Palestine Liberation Organization (the PLO),8 the Protocol
on Further Transfer of Powers and Responsibilities,9 the Hebron Proto-
col,10 the Wye River Memorandum,11 and the Sharm el-Sheikh Memo-
randum.12 e trajectory to institutionalize democracy on the bedrock of
elections was to occur in January 1996 in accordance with the powers of
Oslo II].
8. Aug. 29, 1994, reprinted in 34 I.L.M. 425 (1995). Article II of e Agreement
holds: 1. Israel shall transfer and the Palestinian Authority shall assume powers and
responsibilities from the Israeli military government and its Civil Administration
in the West Bank in the following spheres: education and culture, health, social
welfare, tourism, direct taxation and Value Added Tax (VAT), as specied in this
Agreement (hereinafter “the Spheres”); 2. For the purposes of this Agreement, the
Palestinian Authority shall constitute the authorized Palestinians referred to in
Article VI of the Declaration of Principles; 3. e Parties will explore the possible
expansion of the transfer of powers and responsibilities to additional spheres.
9. Sept. 28, 1995, U.N. Doc. A/81/889 (1995).
10. Jan. 27, 1997, reprinted in 36 I.L.M. 549 (1997) [hereinafter Oslo III]. Justus
R. Weiner, e Hebron Protocol: e End of the Beginning of the End of the
Israeli-Palestinian Peace Process? 15 B.U. I’ L.J. 373 (1997); Lauris Andoni,
Redening Oslo: Negotiating the Hebron Protocol, 26 J. P S. 17 (1997).
“e agreement oers a prime example of “the power of diplomacy and logic
to solve problems,” and it presages a negotiated solution to the conict, though
not necessarily to a general state of peace in the Middle East. A “structure” of
negotiations is now in place involving all of the Arab states, excepting only Iraq,
Libya and Sudan; that so many countries take part means that it may in time
produce important results.” Herbert Leisenberg, Why the Hebron Agreement
is Important, (Jan. 15, 1997), available at http://meforum.org/324/Why-the-
Hebron-Agreement-is-Important/.
11. Oct. 28, 1988, reprinted in 37 I.L.M. 1251 (1988). David Newman, Along the
Dicult Road of Israeli-Palestinian Peace: e Wye Agreement and Early Elections, 6
B  S. B. 62 (1998/99). e agreement emphasizes specic security
concerns that the Israelis raised in the past. Attached to the Memorandum is a base
“timeline” which outlines, step-by-step the order of implementation of mutual
undertakings which are incumbent upon each side. Upon completion of each
phase of the Palestinian commitments, Israel was to transfer a specic percentage
of land to the PA within the context of the “further deployments” as stated in
previously agreed upon arrangements.
12. Sept. 4, 1994, reprinted in 38 I.L.M. 1365 (1994). e Sharm el-Sheikh
Memorandum was signed in Egypt by the newly-elected Israeli Prime Minister,
Ehud Barak, and the PA President Yasser Arafat. Hosts at the ceremony included
Egyptian President Hosni Mubarak, Jordan’s King Abdullah, and Madeleine
Albright, U.S. Secretary of State.

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