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

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.