Expert Analysis on the Legality of New Palestinian Elections, on the New Government & PLO Role

According to press reports out of Ramallah PA Chairman Abbas told the Palestine Central Council today that he was moving towards new Palestinian elections.  The Palestine Central Council is an organ of the PLO and its convening is part of a larger effort to deploy the institutions of the unreformed PLO in the service of the new Ramallah government.  I don’t want to talk about the politics or wisdom of this move in this post but rather to share with you some expert legal analysis on the subject from the wisest counsel I know of on these issues.

Nathan Brown is a Senior Associate at the Carnegie Endowment for International Peace  as well as a professor of political science and international affairs at George Washington University.  He is an expert on Palestinian reform and Arab constitutionalism, and his most recent book, Resuming Arab Palestine, presents research on Palestinian society and governance after the establishment of the Palestinian Authority.

Nathan was kind enough to allow me to share his analysis of the legality of new elections, of recent parliamentary, governmental and PLO maneuvers on ProspectsForPeace.com.  Here is Nathan Brown’s understanding of the legal situation:

1. The PLC is not meeting since Fatah and Hamas deputies take turns boycotting sessions. Hamas has a majority of members, but with so many of them in jail, they cannot outvote Fatah or even muster a quorum on their own. They have tried to call sessions in order to:

· Vote down the state of emergency (which has now expired anyway) and the decree-laws issued by Abu Mazin; and

· Hold a vote of confidence in Fayyad’s new government—the one that was proposed last week, not the earlier emergency government which Hamas viewed (rightly in my opinion) to be unconstitutional. Fayyad’s government would not get a majority. That would leave Haniyya in power (in Hamas’s view and the Basic Law is absolutely explicit backing them here) or Fayyad’s earlier emergency government (in Fatah’s view) as a caretaker.

 

Hamas has explored the idea of allowing deputies in jail to vote by proxy, but for some reason they have not pushed the issue. Proxy voting is contrary to past PLC practice and I suspect would be of dubious legality, but it would give them the majority they want.

Fatah, meanwhile, is pursuing a different angle. Abu Mazin issued a decree calling for the annual PLC session to begin (it was due to be held last March). Hamas said this was illegal and that only the presidium of the PLC could issue such a call. On this one, I think Abu Mazin is right.

Fatah did this because it would mean that the PLC would have to elect a new speaker, presidium, and committee chairs. With so many Hamas deputies in jail, Fatah could take over the body and set its agenda. Thus Hamas would have two choices: to boycott such a session (robbing it of a quorum) or to attend it and then lose control of the body. They have chosen the former path, while continuing with attempts to call their own sessions.

There are some compromise efforts reportedly underway (for instance, to reelect Dweik as speaker but allow the deputies to elect an acting speaker while Dweik is in jail). I don’t see these compromises as working. Hamas and Fatah are struggling for control of the body and the various compromises mentioned would result in a victory for one or the other. I see no middle ground at present. Instead I think that both sides are going to keep claiming to control the agenda and boycott each others’ sessions.

 

2. Abu Mazin’s people are threatening to issue a decree law calling for new elections. I have not seen Abu Mazin himself claim such a power recently.

 

Abu Mazin does have the authority to issue decrees with the force of law in matters that do not allow for delay at times when the PLC is not in session. This authority does NOT fall under the state of emergency but comes in a completely separate article. So it holds even with the expiration of the state of emergency. It would take more than a bit of chutzpah to use it in this case, since it is his party that has boycotted sessions and thus prevented a quorum. Thus, to argue that the PLC cannot meet while actively taking steps to ensure that it does not meet is a little cheeky. But I would not regard it as clearly unconstitutional.

 

However, what would be absolutely and positively unconstitutional would be a call for new elections. The Basic Law was amended in 2005 (in a text not included in most translations of the document which were made in 2003) to fix the term of the PLC at four years. Abu Mazin can issue a decree with the force of law, but he cannot amend the constitution. Only 2/3 of the PLC can do that. Wire service stories have sometimes said the Basic Law is ambiguous here. There is not the slightest degree of ambiguity. And Abu Mazin’s legal advisors know this. Immediately after the PLC elections in January 2006, they tried to ram through a constitutional amendment through the outgoing PLC allowing the president the authority to call for new elections. The attempt failed because not enough loyal deputies showed up. So they knew in January 2006 that early elections required constitutional amendment. To claim otherwise now seems a little strange.

 

3. It is possible that Abu Mazin will turn to the PLO to give some cover to his move. This is a sticky point, since for Palestinians the PLO is the authorizing body for the PA and in some sense stands above it. I would view this more as a political than a legal move; Yasser Arafat used to use this technique (though he never went so far as to contemplate a move this drastic) and nobody found it convincing then.

 

4. It is clear that new elections could not be held without Hamas’s consent in Gaza. It is not even clear that they could be held in the West Bank in a secure atmosphere. Significantly, Fatah seems to be preparing for the likelihood of ugly elections by switching to a system of complete proportional representation. That will have two benefits for them. First, if there is no voting in Gaza districts, they will still be able to seat a complete PLC. Second, the smaller parties might be enticed into participating (they would do better under a proportional representation system), lending legitimacy to the process.

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A couple of days ago while the American media was obsessing over the firing of Patti Solis Doyle from the Clinton campaign and the courting of super delegates, an entire continent and much of the rest of the world was absorbed by something quite different.  On Sunday night Egypt clinched victory in the African Cup of Nations final held in Ghana with a 1-0 win over Cameroon.  The hero and scorer of the winning goal was an Egyptian striker from the Al-Ahli club Mohamed Aboutrika.  Here is the picture of Aboutrika celebrating a goal he scored earlier in the tournament.  He repeated that shirt lifting exercise in the final to reveal a t-shirt with a slight twist on that slogan, this time “Sympathize with the Palestinians.”  Aboutrika became not just a sporting symbol but a national and political symbol also, and the celebrations spilled over from Egypt into Gaza (plenty of other things have been spilling in both directions of late).  

Here’s why this matters and it merits attention and even a two minute break from the relentless primaries speculation: the unresolved Palestinian issue resonates, it is not just a creation used by Arab regimes and al-Jazeera, it is something that echoes with and talks to hundreds of millions of people throughout the world.  There are grievances out there and they have an impact, sometimes a decisive impact on how America is viewed in the world especially given its association with the issue.  Americans can ignore that, pretend it doesn’t exist or tell themselves that this is just about terrorists and terrorist sympathizers.  But doing so would be a mistake and would continue to ignore the crucial breeding ground that provides such fertile terrain for al-Qaeda and other extremist recruitment. Resolving the Israeli-Palestinian conflict is an American interest (of course an Israeli and Palestinian interest as well).  It’s worth taking a moment to tune into these highlights of the African Cup of Nations’ final–even if you don’t agree with the politics you can enjoy a very jolly footballing feast. 

After Mubarak — What Does Israel Do?

After almost thirty years President Hosni Mubarak is gone. For the people of Egypt and especially those with the courage to have taken to the streets it is no doubt a day that is impossible to put into words. For the rest of us, a day of awe, celebration and inspiration.

 

Some however have probably not summoned up too broad a smile today — the other non-democratic regimes of the Middle East for instance. Interestingly, Israel too belongs on that list of the “not-exactly-thrilled”.

 

Israel has long made much of its claim to being the only democracy in the Middle East, it now seems that the claim was more an aspiration rather than a lamentation. Israel has been clinging dearly to the Mubarak regime, and encouraging others (notably the U.S.) to do likewise.

 

Despite claims to the contrary, Mubarak’s Egypt was far from being a regional linchpin for security and stability, for moderate governance, or even for economic success. The country’s harsh security regime produced terrorists and a rallying cry for extremists. Its authoritarianism made a mockery of the tag “moderate,” and its economy is today a quarter the size of Turkey’s (though both countries have populations of similar size). In fact America’s previous role as a guarantor of the Mubarak regime should be considered counterproductive to American interests, certainly once the Cold War was over.

 

But Mubarak’s Egypt was a linchpin for something else — namely Israel’s ability to pursue a hard-line regional policy with near impunity. When Benjamin Netanyahu (or his predecessors) needed to revive his ‘man of peace’ credentials he could always pop over to Sharm el-Sheikh for a hug-in with his friend Hosni, and when Israel needed the Arab world to turn a blind eye to entrenched occupation and settlements or harsh military adventurism then it would be Hosni running cover and diluting any Arab response. For years that strategy paid off for the now-deposed Egyptian leader — it made Mubarak relevant, even indispensable for successive U.S. governments desperately trying to balance their indulgence for outlandish Israeli behavior with a desire to retain some semblance of credibility in the Arab world. The latter of course never happened, but the America was too busy listening to the unelected leaders rather than to their publics.

 

Trying to keep this equation in play is what brings many Israeli officials (and others in the region, the U.S. and beyond) to now push for continued military, as opposed to civilian control.

 

As of today, the new equation is simple and it is this — those governing Egypt will henceforth have to be more responsive to the public will.

 

Some have suggested that Israeli concern is focused on avoiding a revocation of the Egyptian-Israeli peace treaty. It is not. Insisting on Egyptian adherence to the peace treaty with Israel is a legitimate position, has international support, and also accords with both Israeli and Egyptian interests. The treaty has saved lives on both sides, neither of which relishes the prospect of renewed military conflagration. The treaty can be sustained.

 

Israel’s real concerns lie elsewhere.

 

There were a set of regional policies pursued by the Mubarak regime which lacked popular legitimacy. These included the closure imposed on Gaza, support for the Iraq war and for heightened bellicosity toward Iran, and playing ceremonial chaperone to an Israeli-Palestinian peace process that became farcical and discredited. Arguably these policies were also misguided for Israel. For an Egypt reflecting the popular will they make absolutely no sense and are therefore likely to be discontinued.

 

Yes, the January 25 democracy protests were about economic conditions, domestic governance issues and freedom, but a part of the democracy deficit in Egypt was also a dignity deficit, and these Israeli designed policies for the region appeared undignified and anti-Arab to the Egyptian public.

 

When Egypt first made peace with Israel it was criticized at home and in the region for going it alone, for abandoning the Palestinian and broader Arab cause. Had the Israeli-Egyptian peace been followed by a regional peace then this narrative would likely have disappeared, but in the absence of comprehensive peace it was a critique that seemed to be vindicated.

 

To the 1978 Camp David Accords was attached an annex entitled “A Framework for Peace in the Middle East,” which included a commitment to Israeli withdrawal from the Palestinian territories and to negotiating final status within five years. That of course never happened. What did happen is that the 10,000 Israeli settlers living in the West Bank when that accord was signed have become over 300,000 today.

 

Indeed, whether by design or not, the peace treaty with Egypt ushered in the era of the Israeli “free hand” in the region. Even though it has not delivered real security for Israel and has encouraged an Israeli hubris that can be both dangerous and self-destructive, that era of hegemony is something that Israelis are instinctively uncomfortable about losing.

 

A popular Israeli refrain is that the peace with Egypt has neutralized any serious Arab military option vis-a-vis Israel. That the same cannot be said in reverse understandably irks the Arab street. Since signing the accord with Egypt, Israel has conducted several large-scale military campaigns against Lebanon and against the Palestinians, launched bombing raids against Syria and Iraq, and conducted high-profile assassinations in Jordan and the UAE — and that is only a partial list.

 

This deep regional disequilibrium, one that became more rooted under Mubarak’s Egypt, is, understandably, both unpopular and unacceptable to a majority of Arab public opinion.

 

Maintaining the peace treaty with Egypt has morphed over time and under Mubarak into maintaining a peace process that has ultimately entrenched occupation and settlements and made a mockery of its Arab participants. Post-transition Egypt is unlikely to continue playing this game. And without Mubarak’s enthusiastic endorsement, the process itself is likely to further unravel. It is hard to imagine other Arab states leaping into this breach, or the Palestinians accepting 20 more years of peace-process humiliation, or indeed Syria adopting the Egyptian model and signing a stand-alone peace agreement with Israel. Israel’s strategic environment is about to change.

 

Israel’s options would appear to be narrowing. Thus far Israeli establishment voices have discussed two options. One has been to dig in, to fear-monger, to convince the West that Israel is its outpost of stability in a sea of hostility, and to hope the military stays in power and democracy is tamed. In the words of Prime Minister Netanyahu, “might” is the answer. The second approach advocates an urgent return to the peace process. Neither will work. The first will exacerbate Israel’s predicament, and the second is too little too late.

 

Israel has a third option, albeit one that is dramatic and out of synch with today’s zeitgeist. It would be perhaps Israel’s best and last chance for a two-state solution. While it would involve cutting Israel’s losses, it would also have the potential of unleashing huge benefits — economic, security and more, for an Israel accepted as part of the tapestry of a democratic Middle East.

 

Broadly speaking, this option has three components. First, an Israeli withdrawal to the pre-1967 armistice lines almost without preconditions or exceptions (minor, equitable and agreed-upon land swaps and international security guarantees could fall into the latter category ). Second, Israel should undertake an act of genuine acknowledgment of the dispossession and displacement visited on the Palestinian people, including compensating refugees where appropriate, and thus set in motion the possibility of reconciliation. Third, there needs to be a clear Israeli commitment to full equality for all of its citizens, notably including removal of the structural barriers to full civil rights for the Palestinian Arab minority.

 

Admittedly, this is a path less traveled and one likely to remain so, and while the alternatives to this path may well include democracy in the region, they could preclude a future for the State of Israel.

 

While Israeli-Egyptian peace has often been described as a cold peace, it could perhaps be more accurately framed as a pyramid peace — in which only the very tips of the respective societies met and forged narrow common interests. It is high time to reverse that equation and build a democratic peace between the bases of those pyramids. In truth, the onus is on Israel to make this happen, and one key will be to take a more honest and dignified approach to Israel’s Palestinian neighbors and co-citizens and to belatedly implement that regional peace annex from Camp David.

 

 

J Street Conference 2011: Reflections on the US-Israel Relationship

The J Street’s second annual policy conference included a keynote address from Ambassador Dennis Ross, Special Assistant to the President and Senior Director for the Central Region. After Ross’s remarks on The American Role in the Middle East, J Street hosted a panel discussion focusing on the Obama administration’s approach to the Israeli-Palestinian conflict and its policy in the broader Middle East, featuring:  

Bernard Avishai, Hebrew University

Roger Cohen, The New York Times

Daniel Levy, The New America Foundation

Click here to watch.

 

Dennis Ross addresses J Street’s Conference, Followed by Panel Reaction from J Street Education Fund on Vimeo.