Palestinian law is the law administered by the Palestinian National Authority within the territory pursuant to the Oslo Accords. It has an unusually unsettled status, as of 2023, due to the complex legal history of the area. Palestinian law includes many of the legal regimes and precepts used in Palestinian ruled territory and administered by the Palestinian Authority (West Bank areas A and B) and Hamas (Gaza Strip), which is not an independent nation-state.
The scope of this article is to explain the legal history, context and development of law, the current fields of study of law in Palestinian ruled territory, as well as the state of lawlessness in those territories. It is also to discuss the domestic and international positions on which set of laws are controlling in Palestinian ruled territory today.
Due to the changing usages of the terms "Palestine" and "Palestinian" throughout history, the term may also be associated with regimes that are not associated with the Palestinian law of today. Examples include the discussion (in a reference work dating from 1906) of the Talmudic interpretation of laws from Palestine before 70 AD, also known as Halakha: "Those of the laws of Palestine that were extended after the Exile were originally enacted for the purpose of protecting the judicial administration and economic interests of Palestine, and with a view to encourage settlement there." [1] Such references to ancient Palestinian law do not apply to the Palestinian legal situation since at least 1948.
Essentially, says one legal scholar, "the legal system in 'Palestine' consists of layer upon layer of law that almost all remain in effect." [2] The major issue is the:
question of whether the emerging state of Palestine will be capable of overseeing a system of rule of law. This debate is important not only in the political arena but in the legal arena as well, since a viable state must have a legal system that is functional and reliable. Despite the historically deteriorated condition of the Gazan and West Bank legal systems under occupation, the Palestinians recently have sought to seize the opportunity to determine the fate of their own legal heritage. To determine how this may be possible, we must look at what laws currently exist in the Palestinian territories. The law applied in different parts of the West Bank and Gaza strip is a combination of the various laws imposed on said areas throughout this century. Instead of each new law superseding the previous law, almost all of these laws remain in effect in the territories. Therefore, one would have to research multiple legal systems and codes to determine the law in one area. This is quite a confusing situation. The Palestinian legal system can be compared to a tossed salad, with layers of different laws and systems all mixed up into a confused mess. This situation in the Palestinian Territories is perhaps unprecedented in modern history.
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The laws that applied come from many jurisdictions through history: "Customary Law ... Ottoman Law ... British Law ... Jordanian Law ... Egyptian Law ... Israeli" law and even the informal strictures of the intifada, and finally, the Palestinian National Authority's Basic law. [2]
The subject of sovereignty is both controversial and unsettled; "neither the PLO nor the PA is recognized as a sovereign state by the United States.” [3]
The Basic law , established in 2002, is the proposed constitution of a future Palestinian state. [4] According to one report, "Palestinians had been requesting that the law be signed into effect since 1997, in order to formally guarantee a modicum of basic rights." [4] It was enacted by the PLC (the Legislature of PNA) and signed by Yasser Arafat. [4] [5] It was amended on March 19, 2003 "to allow the creation of the Prime Minister Position in the Palestinian National Authority...." [6]
The Basic Law is based loosely on Shari'a:
According to Article 4:
The Basic Law is introduced with "In The Name of God, The Merciful, The Compassionate", [6] as are most documents in Islamic countries.[ citation needed ]
With 121 articles, it is more akin to a state constitution in comprehensiveness, detail and length.
The "bill of rights" Articles of the Basic Law, as amended March 19, 2003, cover the following topics:
There is some confusion amongst jurists, scholars and laymen about exactly what legal regime exists, and which laws apply, in Palestinian ruled territory.
Mahdi Abdul Hadi, a legal scholar, believes that all prior and current law continues to apply in the Palestinian territories, including "the British Mandate laws, the Jordanian laws that used to govern the West Bank before 1967 and the Egyptian law that governed Gaza Strip before 1967, in addition to the Israeli military orders." [2] [7] According to Abdul Hadi, the first step was the organization of "Palestinian civil society", that is, a traditional law, "then came the Madrid Conference and the Oslo Accords which drafted laws to govern the Palestinian political life for the interim period." [7] Following that, "the general elections in 1996 ... brought about the Palestinian Legislative Council as the legislative body of the Palestinian people in the Palestinian lands." [7]
Ottoman law has governed Palestine since 1517, and the Ottoman Land Code of 1858 is still in force, one of the causes of international controversy over land seizures. [2] [8] The Ottoman statutory "codification mirrored Islamic law but also incorporated elements of European law, especially the law of France." [2]
Islamic customary law applies in Palestinian ruled territory:
Alongside every formal legal system in Palestinian history, there existed a system of customary law known as "Urf", which means “that which is known” in Arabic. This was a system of rules outside the court system, which handles disputes based on traditional oral customs.
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The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law, [9] the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (this is called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. Urf is the Islamic equivalent of "common law". [10]
In the application of urf, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality; jurists also tend, with caution, to give precedence to custom over doctoral opinions of highly esteemed scholars. [10]
For the most part, crimes and violent acts are considered crimes of violence and fall under the purview of the criminal justice system. The Palestinian Authority operates under its own criminal law, such as its Penal Code. In addition, "the Palestinian Authority also imposes the death penalty pursuant to the PLO Revolutionary Penal Code, of 1979." The PNA utilizes both military and special, state security courts for most death penalty cases. [11]
Civil law used the customary law in Palestine: "Urf covered disputes such as contracts, family disputes, personal injury, and land matters." [2]
Through the use of urf, Palestinians use alternative dispute resolution, specifically forms of participatory justice: "This system stressed conciliation, mediation, and family honour." [2]
The Palestinian Land Law is a law that prohibits Palestinians from selling land to Jewish citizens of Israel. The punishment for violators is the death penalty. [12]
The Gaza Strip, or simply Gaza, is a polity and the smaller of the two Palestinian territories. On the eastern coast of the Mediterranean Sea, Gaza is bordered by Egypt on the southwest and Israel on the east and north.
The Palestinian National Authority, commonly known as the Palestinian Authority and officially the State of Palestine, is the Fatah-controlled government body that exercises partial civil control over West Bank areas "A" and "B" as a consequence of the 1993–1995 Oslo Accords. The Palestinian Authority controlled the Gaza Strip prior to the Palestinian elections of 2006 and the subsequent Gaza conflict between the Fatah and Hamas parties, when it lost control to Hamas; the PA continues to claim the Gaza Strip, although Hamas exercises de facto control. Since January 2013, the Palestinian Authority has used the name "State of Palestine" on official documents, although the United Nations continues to recognize the Palestinian Liberation Organization (PLO) as the "representative of the Palestinian people".
The Palestine Liberation Organization is a Palestinian nationalist coalition that is internationally recognized as the official representative of the Palestinian people. Founded in 1964, it initially sought to establish an Arab state over the entire territory of the former Mandatory Palestine, advocating the elimination of the State of Israel. However, in 1993, the PLO recognized Israeli sovereignty with the Oslo I Accord, and now only seeks Arab statehood in the Palestinian territories that have been militarily occupied by Israel since the 1967 Arab–Israeli War.
The Palestinian territories are the two regions of the former British Mandate for Palestine that have been occupied by Israel since the Six-Day War of 1967, namely the West Bank and the Gaza Strip. The International Court of Justice (ICJ) has referred to the West Bank, including East Jerusalem, as "the Occupied Palestinian Territory", and this term was used as the legal definition by the ICJ in its advisory opinion of July 2004. The term occupied Palestinian territory was used by the United Nations and other international organizations between October 1999 and December 2012 to refer to areas controlled by the Palestinian National Authority, but from 2012, when Palestine was admitted as one of its non-member observer states, the United Nations started using exclusively the name State of Palestine. The European Union (EU) also uses the term "occupied Palestinian territory". The government of Israel and its supporters use the label "disputed territories" instead.
Palestine, officially the State of Palestine, is a state in the Southern Levant region of West Asia. Founded on 15 November 1988 and officially governed by the Palestine Liberation Organization (PLO), it claims the West Bank and the Gaza Strip as its territory, all of which has been Israeli-occupied territories since the 1967 Six-Day War. The West Bank contains 165 Palestinian enclaves that are under partial Palestinian rule, but the remainder, including 200 Israeli settlements, is under full Israeli control. The Gaza Strip was governed by Egypt but conquered by Israel in 1967. Israel governed the region until it withdrew in 2005; although it is still considered to occupy Gaza. Hamas seized power after winning the 2006 Palestinian legislative election. The Gaza Strip has since been blockaded by Israel and Egypt.
The International law bearing on issues of Arab–Israeli conflict, which became a major arena of regional and international tension since the birth of Israel in 1948, resulting in several disputes between a number of Arab countries and Israel.
Israel has occupied the Palestinian territories and the Golan Heights since the Six-Day War of 1967. It previously occupied the Sinai Peninsula and southern Lebanon as well. Prior to Israel's victory in the Six-Day War, occupation of the Palestinian territories was split between Egypt and Jordan, with the former having occupied the Gaza Strip and the latter having annexed the West Bank; the Sinai Peninsula and the Golan Heights were under the sovereignty of Egypt and Syria, respectively. The first conjoined usage of the terms "occupied" and "territories" with regard to Israel was in United Nations Security Council Resolution 242, which was drafted in the aftermath of the Six-Day War and called for: "the establishment of a just and lasting peace in the Middle East" to be achieved by "the application of both the following principles: ... Withdrawal of Israeli armed forces from territories occupied in the recent conflict ... Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force."
The status of territories captured by Israel is the status of the Gaza Strip, the West Bank, the Golan Heights, and the Sinai Peninsula, all of which were captured by Israel during the 1967 Six-Day War.
The state of human rights in the West Bank and Gaza Strip is determined by Palestinian as well as Israeli policies, which affect Palestinians in the occupied Palestinian territories both directly and indirectly, through their influence over the Palestinian Authority (PA). Based on The Economist Democracy Index this state is classified as an authoritarian regime.
Palestinian people have a history that is often linked to the history of the Arab Nation. Upon the advent of Islam, Christianity was the major religion of Byzantine Palestine. Soon after the rise of Islam, Palestine was conquered and brought into the rapidly expanding Islamic empire. The Umayyad empire was the first of three successive dynasties to dominate the Arab-Islamic world and rule Palestine, followed by the Abbasids and the Fatimids. Muslim rule was briefly challenged and interrupted in parts of Palestine during the Crusades, but was restored under the Mamluks.
Freedom of religion is the freedom to practice religion, change one's religion, mix religions, or to be irreligious. Religion in the State of Palestine plays a strong role in society, including in the legal system and the educational system.
The following outline is provided as an overview of and topical guide to the State of Palestine:
Homosexuality in the Palestinian territories is considered a taboo subject; LGBT people experience persecution and violence. There is a significant legal divide between the West Bank and the Gaza Strip, with the former having more progressive laws and the latter having more conservative laws. Shortly after the Jordanian annexation of the West Bank in 1950, same-sex acts were decriminalized across the territory with the adoption of the Jordanian Penal Code of 1951. In the Egyptian-occupied Gaza Strip and under Hamas's rule, however, no such initiative was implemented.
People of the Palestinian territories—the West Bank and the Gaza Strip—are bound by differing laws that handle marital unions on the basis of the couple's national status and religious affiliation. After the 1948 Arab–Israeli War, the Palestinian residents of the Jordanian-annexed West Bank and the Egyptian-occupied Gaza Strip became subject to Jordanian marriage law and Egyptian marriage law, respectively. After the 1967 Arab–Israeli War, which saw Israel capture the Palestinian territories from Jordan and Egypt, those original laws largely remained in place.
Palestinian land laws dictate how Palestinians are to handle their ownership of land under the Palestinian National Authority—currently only in the West Bank. Most notably, these laws prohibit Palestinians from selling any Palestinian-owned lands to "any man or judicial body corporation of Israeli citizenship, living in Israel or acting on its behalf". These land laws were originally enacted during the Jordanian occupation of the West Bank, which began after Jordan's partial victory during the 1948 Arab–Israeli War and ended after the sweeping defeat of the Arab coalition to the Israeli military during the 1967 Arab–Israeli War, following which the territory was occupied by Israel. Land sales by Palestinians to Israelis are considered treasonous by the former to the Palestinian national cause because they threaten the aspiration for an independent Palestinian state. The prohibition on land-selling to Israelis in these laws is also stated as enforced in order to "halt the spread of moral, political and security corruption". Consequently, Palestinians who sell land to Israelis can be sentenced to death under Palestinian governance, although death penalties are seldom carried out; capital punishment has to be approved by the President of the Palestinian National Authority.
Racism in the Palestinian territories encompasses all forms and manifestations of racism experienced in the Palestinian Territories, of the West Bank, Gaza, and East Jerusalem, irrespective of the religion, colour, creed, or ethnic origin of the perpetrator and victim, or their citizenship, residency, or visitor status. It may refer to Jewish settler attitudes regarding Palestinians as well as Palestinian attitudes to Jews and the settlement enterprise undertaken in their name.
The lives of Palestinian women have transformed throughout many historical changes including Ottoman control, the British Mandate, and Israeli occupation. The founding of the Palestine Liberation Organization in 1964 and the later establishment of the Palestinian Authority in 1994 also played a role in redefining the roles of women in Palestine and across the Palestinian diaspora. Women have been involved in resistance movements in Palestine, Jordan, Syria, and Lebanon throughout the 20th century and into the 21st century.
The president of the Palestinian National Authority is the highest-ranking political position in the Palestinian National Authority (PNA). The president appoints the prime minister of the Palestinian National Authority, who normally requires approval of the Palestinian Legislative Council, and who shares executive and administrative power with the president.
The Palestinian Legislative Council (PLC) is the unicameral legislature of the Palestinian Authority, elected by the Palestinian residents of the Palestinian territories of the West Bank and Gaza Strip. It currently comprises 132 members, elected from 16 electoral districts of the Palestinian Authority. The PLC has a quorum requirement of two-thirds, and since 2006 Hamas and Hamas-affiliated members have held 74 of the 132 seats in the PLC. The PLC's activities were suspended in 2007 and remained so as of November 2023, while PLC committees continue working at a low rate and parliamentary panel discussions are still occurring.
There are a wide variety of views regarding the legal status of the State of Palestine, both among the states of the international community and among legal scholars. The existence of a state of Palestine, although controversial, is a reality in the opinions of the states that have established bilateral diplomatic relations. It is a non-member observer state at the United Nations since November 2012. As of 2 June 2023, a total of 139 countries recognize it.
