Hamas Rule in Gaza
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Hamas Rule in Gaza: Human Rights under Constraint Tariq Mukhimer Bank of Ireland Fellow, Irish Centre for Human Rights, National University of Ireland
hamas rule in gaza Copyright Tariq Mukhimer, 2013. Softcover reprint of the hardcover 1st edition 2013 978-1-137-31018-7 All rights reserved. First published in 2013 by PALGRAVE MACMILLAN in the United States a division of St. Martin s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave and Macmillan are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978 1 137 31019 4 PDF ISBN: 978 1 349 45658 1 doi: 10.1057/9781137310194 Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. A catalogue record of the book is available from the British Library. First edition: 2013 www.palgrave.com/pivot
Contents Preface and Acknowledgments vii Introduction 1 Some remarks on the methodology 3 1 Non-State Actors and International Human Rights Law: An Overview 9 Non-state actors under international humanitarian law 12 A normative foundation: international humanitarian law versus international human rights law 14 Rethinking the global system of human rights: toward an inclusive, non-statist model 15 2 The Rise of Hamas as a Non-State Actor Resembling a Government: Background and Operational Setting 25 Hamas s resemblance of a government 27 Toward the Gaza Strip s closure: self-defense or collective punishment 30 On the Gaza Strip s legal status and Israel s self-defense 34 Gaza s closure: an enduring collective punishment 41 v
vi Contents 3 Hamas and Human Rights 56 The Hamas authority: between de facto international human rights obligations and domestic obligations 58 The Hamas authority: the failure to uphold the right to life, and the policy of torture 61 The Hamas authority vis-à-vis political opponents: the uncompromising authority 63 Torture: another instrument for neutralizing opponents 67 The Hamas authority and civil society: human rights in crisis 69 The Hamas authority and the right to freedom of expression: between multilateral and unilateral versions of the story 69 The Hamas authority and the right to peaceful assembly: the control of society 77 The Hamas authority and the right to freedom of association: tightened control 84 Hamas and the climate of accountability 97 Investigations are not undertaken 98 Investigations are undertaken and made public, but are not serious and thorough 99 Unserious investigations in response to international pressure 99 Unserious investigations in response to local pressure 100 Hamas ombudsman: the office of the comptroller general 104 Informal mechanisms of investigation 106 Conclusion: Hamas Rule, Human Rights, and State-Like Institutions 127 Bibliography 132 Index 158
Preface and Acknowledgments The idea of this book came into being two years after Hamas had assumed uncontested control over the Gaza Strip in 2007. Apart from the institutional consequences of this development (e.g., the rise of two authorities, each separately governing the Gaza Strip and the West Bank) this development has left the Palestinian nationbuilding project in the balance, and appears to minimize the prospects for realizing Palestinian human rights in the Occupied Palestine Territories (OPT). Alarmed by this development, I have sought to critically evaluate the impact of this development on the state of human rights in the OPT, particularly in the Gaza Strip. In this regard, I wish to stress that the limited territorial scope of this study does not necessarily suggest a better human reality in the West Bank as opposed to the Gaza Strip. I maintain the belief that the political conflict between the governing authority in the West Bank the Palestinian Authority (PA) in Ramallah and the governing Hamas authority in the Gaza Strip has resulted in both authorities putting more weight on political concerns at the expense of human rights and, hence, have undermined human rights in the OPT, including both the West Bank and the Gaza Strip. Yet, my desire to extensively overview the closure of Gaza and the Gaza Strip s legal status in the wake of the Israeli disengagement plan of 2005, in addition to my desire to evaluate Hamas s mode of governance, have led naturally to a focus on the Gaza Strip as a case study. In undertaking this work, I have relied on the Irish Centre for Human Rights, National University of Ireland, vii
viii Preface and Acknowledgments Galway, Ireland. The Centre hosted and logistically supported me during the writing of this work. I herein wish to express my sincere and deep gratitude to the Centre. Special mention must go to Dr. Kathleen Cavanaugh, Bank of Ireland Fellowship coordinator, and Professor Ray Murphy, interim director of the Centre, for their generosity, support, and encouragement. I also wish to highlight the financial support of the Bank of Ireland for this work. Without such support this work would not have come to fruition. This fact alone merits my sincere gratitude. Some colleagues at the Irish Centre for Human Rights were also of great help and support. In this respect, I wish to extend my deep thanks to my friend Josh Curtis, for his great and constructive comments on the work. My wife and our three children (Rabab, Saeb, and Mousa), who have joined me in this adventure, together with my mother, bear a sometimes seemingly intolerable burden. To them, warm love. Thanks also go to my friend Matthias Behnke, who encouraged and supported this adventure. Last, but not least, this work was written in memory of my father, Musbah, and my brother, Musa, and for all Palestinian martyrs who have written our history with their blood, including: Kamal El Nairab, Emad Hamad, Malek Sha ath, and thousands of others. viii