Assesing the implementation of the International Covenant on Civil and Political Rights
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In this report, the Jerusalem Institute of Justice (JIJ) examines political rights and freedoms in the West Bank and Gaza under the Palestinian Authority (PA). Through comprehensive research and interviews with residents and workers in the West Bank and Gaza, this report aims to illuminate the current situation with regard to political rights for Palestinians in these territories. After the State of Palestine achieved “non-member observer state” status from the UN General Assembly in 2012, President Mahmoud Abbas signed and acceded to multiple international humanitarian and human rights treaties and conventions, thus rendering the State of Palestine accountable for the upholding certain rights. This report deals with three major rights: the freedom of assembly, the freedom of association, and electoral rights.
Freedom of Assembly
A part of international law, the UN’s International Bill on Human Rights guarantees the right to freedom of assembly. On April 2, 2014, the State of Palestine became a signatory to the International Covenant on Civil and Political Rights 1976 (ICCPR). However, it appears that the application of these laws does not always uphold these rights.
In Gaza, two forms of domestic law in the West Bank currently govern the right to Freedom of Assembly: Palestinian Basic Law and Public Meeting Law No. 12 of 1998. Under the PA, individuals are required to provide permits for demonstrations. Demonstrations that are against PA policies are often dispersed. While a broad range of non-governmental organizations operate freely in the West Bank, many Hamas-affiliated civic associations have been shut down for political reasons.
Under Article 2 of Public Meetings Law No. 12 of 1998, a public assembly is defined as any public gathering of 50 or more persons in a public open space (Art. 1). The statute goes on to provide restrictions to this right, such as the need for a 48-hour written notice of the assembly to be submitted to the Director of Police (Art. 3), for the notice to be signed by at least three organizers of the assembly, and for notification of the time, place, and purpose of the meeting (Art.4).
The Executive Bill issued by the late President Yasser Arafat, limited the right of assembly by giving the police the right to “disperse and end any meeting upon determination [by the police] that the meeting is not following its stated purpose or objective.” Furthermore, the Executive Bill outlined requirements that organizers of meetings take account for the provisions set out in Presidential Decree No. 3 of 1998 concerning the “perpetuation of national unity and incitement prevention.” This makes it more difficult for Palestinians to exercise their right to freedom of assembly, and leaves considerable room for abuse of executive power. The executive power is indeed oftentimes abused due to a lack of separation of power between the executive, legislative, and judicial branches.
Generally speaking, when it comes to secret or indoor meetings, there is no interference in the West Bank, though in Gaza Hamas commonly breaks up private meetings in homes, thus violating the Basic Law.
Public assemblies tend to have more restrictions, especially when the issue addressed by the assembly proves to be political. In certain instances, the authority will not only be present with security forces, but also will even ban the assembly altogether – a blatant violation of the right of assembly guaranteed by the Basic Law and the Public Meetings Law.
The Public Meetings Law No. 12, and specifically its accompanying restrictions under the Executive Bill, have become an excuse for Hamas security forces to ban, attack and forcibly disperse many assemblies and public meetings. This has often been carried out with the use of disproportionate force, and with reports of police using clubs and stun grenades. An international call for accountability has been met with the appointing of committees that look into incidents of excessive and unjustified force. Although in some occasions disciplinary action was taken against offending officers, it seems that the motive originated from a desire to pacify the people rather than to search for long-term change in the effort to uphold the right to Freedom of Assembly.
Freedom of Association
Freedom of Association refers specifically to individual and workers’ rights to form associations or organizations, trade unions, non-governmental organizations, and charities, among others. The right to freedom of association is guaranteed under both the ICCPR and the UDHR. In terms of domestic law, the West Bank and Gaza, under the split governance of Hamas and Fatah respectively, have distinct legislation governing the right to freedom of association, though this right is accounted for under the Palestinian Basic Law of 2003, which currently serves as a temporary constitution. However, this freedom is regularly violated when it involves any form of political discussion.
In the West Bank and Gaza, the Law of Charitable Associations and Community Organizations No. 1 of 2000 (hereafter Associations Law), and the Palestinian Labor Law No. 7 of 2000 (hereafter Labor Law) also govern the right of association. This right can be best assessed when split into two categories: Charitable Associations and Community Organizations, and Trade Unions.
A series of administrative directives and decisions undermine the effective implementation of the protection of freedom of association. Firstly, under the Associations Law all associations must be registered with the authorities in order to carry out their activities. In theory this is only to notify the authority of the existence of a charity, which is considered legal within two months of submitting the application, with or without a response from the authorities. In practice, however, the registration system has become a licensing process, which is funneled through the Ministry of Interior, giving it undue power. This extends to funding and finance, as the Ministry of Interior may scrutinize the allocation and raising of funds, possibly allowing for inappropriate government intervention in NGO activities.
The Monetary Authority has issued instructions to banks in the West Bank and Gaza, that associations must present certification of legal status to the bank when wishing to open an account. This leaves many associations and organizations unable to open an account, despite having legal status by virtue of the two-month time lapse, as many have not received any formal documentation from the Ministry of Interior. Therefore, from a legal standpoint, many associations with legal status are prevented from carrying out their activities due to restrictive administrative decisions (or complete lack of decision) from the Ministry of Interior. Additionally, it has been reported that authorities in the West Bank may refuse to allow the opening of organizations registered in Gaza, and vice-versa, though the law does not allow this.
Another issue lies in the case of the dissolution of an organization, wherein the funds are transferred to the Palestinian National Authority public treasury. This amendment clearly opens the door to corruption and the misuse of funds by government officials with political motives.
Such government control is excessive. This abuse of power is especially noticeable when comparing freedom of association in other nations such as the US and the UK.
International and domestic laws also ensure the protection of workers’ rights. However, the PA has banned all Union of Public Employees activities. This effectively deprives public sector employees in the West Bank from being represented by their elected representatives and from undertaking any collective bargaining or any form of dialogue with their employer, the Palestinian government. However, in 2013, Hamas introduced a new Trade Unions Law No. 2 of 2013 to replace the former 1954 Egyptian Law for Trade Unions. As progressive this might seem, the new Trade Unions Law has been said to place severe restrictions on the exercise of the freedom of association and assembly. Unfortunately, the specifics of this cannot be commented upon, as the Trade Unions Law itself is only available in Arabic.
The right to take part in political life is enshrined in the Universal Declaration of Human Rights under Article 21, which states that the will of the people shall be expressed in periodic and genuine elections. General Comment No. 25 on the ICCPR also states that electoral rights ensure that individuals may freely determine their political status and choose the form of their government or constitution. Additionally, the 2003 Basic Law covers the right to vote under Article 26 (3) and (4). However, no general elections have taken place in the Palestinian Authority since 2006. This general election followed the presidential election of Mahmoud Abbas in 2005, one year earlier. The laws governing this area stipulate that general and presidential elections should be held every four years – the reality is quite different.
Local elections in the West Bank and Gaza have a rather tumultuous history. The first local elections took place in 2004-2005 under Local Elections Law No. 10 of 2005 and were carried out in five rounds of elections. The next elections were due to take place in 2010, but were postponed indefinitely after the Central Elections Commission (CEC) for Palestine (the body governing elections) announced that it would not be possible to conduct voter registration in Gaza and Jerusalem.
The disruptions to local and general elections in the West Bank and Gaza are undoubtedly a result of the Hamas-Fatah political divide. Following Hamas’ victory in the 2006 legislative elections, tensions rose between the two factions with Hamas later seizing control of the Gaza Strip in 2007. There have been multiple attempts at reconciliation between the two parties but the relationship has continued to deteriorate.
Abbas’ term as president should have ended in 2009, yet this year marks his tenth year as President of the Palestinian Authority with no presidential elections in sight. As with Freedom of Assembly, this is an issue with the separation of powers. The legislature is not separate from the executive branch, whose political division is causing the continuous violation of the Palestinian right to vote. Given that the separation of powers is a fundamental principle of democratic society, this should be of great concern to the international community.
The State of Palestine acceded to the International Covenant on Civil and Political Rights in April of 2014 and as such, is obligated to uphold the human freedoms documented therein. These rights are fundamental rights in international law and treaties, and should be accorded such significance. As it stands currently, the Palestinian Authority and Hamas are making little effort to protect and promote these rights of the Palestinian people and are thus in violation of international law.