In making sure that the rule of law would not prevail over his political interests, Arafat made maximum use of legalistic creativity and brute force alike, utilizing those powers that he was officially entitled to wield, as well as those that were his by dint of the number of armed men answerable to him. Arafat used his legislative authority to sow complete confusion as to which laws were in force, exploited the power of appointment and dismissal to prevent judges from making unbiased decisions when the law was known, and encouraged his security forces to ignore both the law and the courts if no other method sufficed.

In creating legal bedlam, Arafat took full advantage of the complex situation the PA inherited in the West Bank and Gaza Strip. Prior to being captured by Israel in 1967, these areas had been governed successively by the Ottomans, by the British, and by Jordan (in the case of the West Bank) and Egypt (in the case of Gaza), and each of these rulers had added to the laws of its predecessors without creating a coherent, unified system. In two and a half decades, the Israeli military government promulgated nearly 2,500 orders, partly with a view towards putting in place a modern legal system that would apply throughout the West Bank and Gaza. Nonetheless, Israel did not succeed in establishing a framework that could serve as the basis for an autonomous state, nor did it incorporate the kinds of safeguards for rights that are necessary to check would-be dictators.⁵¹

What transformed complexity into chaos, however, was a series of decisions made by Arafat himself. In his first executive order as head of the PA, issued from Tunis on May 20, 1994, Arafat decreed he was restoring all laws that had been in effect on June 5, 1967, the day the Six Day War broke out, and canceling by implication all legislation effected by Israel in the intervening years.⁵² This order, published in the Arabic-language newspapers that were read in the territories, contributed to Arafat’s image as a man who could, with a stroke of his pen, undo the occupation.⁵³ Its practical impact, however, was to make it impossible to know what laws applied, as Arafat’s decree could be neither interpreted literally nor ignored. For starters, it was legally invalid, since the Gaza-Jericho agreement that Arafat had signed two weeks earlier forbade the PA to amend even a single law without Israeli approval.⁵⁴ Moreover, it was totally impractical, since eliminating 27 years of legislation would have left entire areas of human endeavor without a legal framework.⁵⁵

Consequently, senior PA officials made a series of contradictory pronouncements during the ensuing months as to which laws were in effect. The PA minister of transportation declared that some Israeli regulations were still valid in his field, and the finance minister implied that the same was true of the tax system.⁵⁶ Nabil Sha’ath, after announcing that a high-level committee had been established to determine which laws were in effect, declared that electricity, traffic, land, and similar issues would function in line with Israeli decrees until further notice.⁵⁷ Justice Minister Freih Abu Medein announced, somewhat cryptically, that the PA would honor particular Israeli orders “only to the extent that doing so leads to a concrete gain for the Palestinian people.”⁵⁸ Arafat himself issued a decree in late 1994 canceling 23 specific Israeli orders in the Gaza Strip, which implied that the remainder were still in force.⁵⁹ Subsequently, Abu Medein issued a series of additional pronouncements indicating that some Israeli laws were still in effect and that a committee—different from the one Sha’ath had announced—was figuring out which were valid and which would be amended or repealed.⁶⁰

Against this background, judges could only guess which laws applied in PA-run territories, and effectively had to serve as lawmakers for their own jurisdictions. The judge of the Jericho civil court, for example, declared that all Israeli military decrees were void and could not be used in his court, except for a certain Regulation 1310 regarding traffic matters, which was based on general international principles and was therefore acceptable.⁶¹

As if that were not enough, Arafat introduced an entirely new legal system into the areas under PA control, the PLO Revolutionary Code of 1979, and appointed a military court to apply it. His argument for importing the PLO’s brand of military justice was that this code had been used for a decade and a half to regulate the behavior of Palestine Liberation Army members, several thousand of whom were now living in the territories. This declaration notwithstanding, the military court also used the revolutionary code to try civilians, even for offenses covered by the existing penal law, and thus cast the specter of military law over the entire Palestinian population.⁶²

Instead of resolving these contradictions by enacting a legal framework applicable in all PA-held areas, Arafat delayed the work of a PLO legal committee charged with the task of drawing up a constitution. He received its first draft in December 1993, promised its author that it would be promulgated simultaneously with the establishment of the PA in May 1994, but instead sent it through so many revisions that when elections were held in January 1996, no constitutional document had been adopted.⁶³ The PA did pass a handful of laws between May 1994 and January 1996, but these were limited to specific areas such as publications and elections, and did little to redress the systemic chaos.

In issuing presidential decrees, Arafat exploited this situation by choosing precedents from among various legal systems, depending on what was most expedient.⁶⁴ Some PA security officials went even further, asserting at times that they were basing a regulation on a valid Palestinian law, even though no such law existed.⁶⁵ The Palestinian Independent Commission for Citizens’ Rights (PICCR), a usually tame ombudsman’s group within the PA, summed up the effects of this state of lawlessness in concluding: “The existence of a variety of laws, many of which are of a military and emergency nature, has been used by the Palestinian Authority… to justify excesses and violations such as the prevention of political meetings without permits [and] the curtailment of freedom of movement....”⁶⁶

With the law amorphous, Arafat was able to ensure that the judiciary would be weak and dependent.⁶⁷ He set up new courts by decree and appointed about two dozen judges, mostly on the basis of loyalty rather than expertise.⁶⁸ In Jericho, Saeb Erekat appointed a PLA colonel with no experience in the laws of the West Bank to head the civil court: According to a senior official of the International Commission of Jurists, this judge generally based his decisions on “personal views rather than on the letter of the law.”⁶⁹ Through such appointments, a message was sent to veteran judges that they, too, were liable to be assessed not on the basis of professional criteria, but according to a standard for judgment based far more on loyalty and other political considerations.

But the peak of Arafat’s campaign to make the judiciary subject to political dictates was the establishment of the High Court for State Security in February 1995. Arafat established this court a week after a suicide bombing killed 21 Israelis, and in direct response to Israeli and American demands that he begin punishing those responsible for such attacks.⁷⁰ The state security court was empowered to try civilians and military figures alike, but Arafat appointed military officers, most of whom lacked legal training or judicial experience, to fill all of the slots as justices.⁷¹ In setting up the court, Arafat granted himself the power to decide who would be tried, and for what offenses.⁷² Though PA officials were at pains to point out that these courts functioned on the basis of civil law, Abu Medein acknowledged that they were established to circumvent the procedures of the regular criminal courts.⁷³ Cabinet Secretary Tayyeb Abed a-Rahim, a personal aide to Arafat, noted that certain cases could not properly be handled by the civilian system of courts, which were overburdened by legal safeguards: He cited the instance of a Palestinian man accused of plotting to kill Arafat, who had been on trial in a civilian court for three months “without any progress” and might even be freed by the judge merely because of a lack of evidence.⁷⁴

The state security courts quickly lived up to their potential for political manipulation. The timing of their first trials in April 1995 was dictated by political factors, after Israeli and U.S. pressure on the PA was ratcheted up following a pair of suicide-bombing attacks in Gaza that killed seven Israelis and an American. Within several hours of the attacks, the court handed down its first decisions, and in the next six weeks tried 33 people and convicted 29, sentencing them to jail terms ranging from two months to 25 years. Though the charges were phrased as if the defendants had committed crimes against the PA, most of the initial defendants were tried for involvement in attacks against Israelis.⁷⁵ Since the point of the courts was to hand down appropriate verdicts quickly, normal safeguards were dispensed with: The trials were held in the middle of the night, with little warning, and without the presence of family members or journalists. Defendants were represented by court-appointed lawyers, little evidence was offered, and decisions were generally returned in fifteen minutes or less.⁷⁶ When one of the officer-justices resigned in protest over the lack of proper procedures, Arafat ordered him to be arrested and interrogated.⁷⁷

The primacy of politics over law did not end with the verdicts. Quite apart from the formal authority granted to President Arafat to commute sentences, a dozen people who were given long prison terms were simply released within a few months, when pressure from the Israelis lessened or when Arafat switched from stick to carrot in handling the Islamic opposition.⁷⁸ Several men convicted of involvement in terror against Israelis were absorbed directly into the Palestinian police, whereas none of those found guilty of run-of-the-mill crimes or collaboration with Israel were given similarly lenient treatment.⁷⁹ Though the security courts functioned only when their particular brand of justice was needed—at times, months went by without cases being referred to them—they sent an unmistakable message as to how little value was placed on an independent judiciary.

In these conditions, the rule of law was absent in the simplest sense: Statutes and court decisions were routinely flouted by the PA executive and security forces. Sometimes the executive refused to enforce court decisions that went against its interests. In one case, the Supreme Court of Gaza accepted a lawyer’s appeal on behalf of Abdallah a-Shami and demanded that the prosecutor’s office either produce evidence linking the Islamic Jihad activist to terror attacks or free him. When it became clear after four sessions that the prosecutor’s office was stalling, the court ordered that a-Shami be freed immediately, but the security forces continued holding him for a full month.⁸⁰ In another case, the Gaza Supreme Court ruled that Kamal Salim, who was being detained without a trial, should be released; the police complied, only to arrest him again eight hours later.⁸¹