hamas rule in gaza ||

Hamas Rule in GazaHuman Rights under ConstraintTariq MukhimerISBN: 9781137310194DOI: 10.1057/9781137310194Palgrave Macmillan

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DOI: 10.1057/9781137310194

Hamas Rule in Gaza

10.1057/9781137310194 - Hamas Rule in Gaza, Tariq Mukhimer

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DOI: 10.1057/9781137310194

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DOI: 10.1057/9781137310194

Hamas Rule in Gaza: Human Rights under Constraint

Tariq MukhimerBank of Ireland Fellow, Irish Centre for Human Rights, National University of Ireland


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hamas rule in gazaCopyright Tariq Mukhimer, 2013.All rights reserved. First published in 2013 byPALGRAVE MACMILLANin the United Statesa division of St. Martins 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: 9781137310200 EPUBISBN: 9781137310194 PDFISBN: 9781137310187 HardbackLibrary 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: 2013www.palgrave.com/pivotdoi: 10.1057/9781137310194


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vDOI: 10.1057/9781137310194

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

Hamass resemblance of a government 27 Toward the Gaza Strips closure: self-defense

or collective punishment 30 On the Gaza Strips legal status and Israels

self-defense 34 Gazas closure: an enduring collective

punishment 41


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vi Contents

DOI: 10.1057/9781137310194

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--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


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viiDOI: 10.1057/9781137310194

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 nation-building 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 Bankthe Palestinian Authority (PA) in Ramallahand 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 Strips legal status in the wake of the Israeli disengagement plan of 2005, in addition to my desire to evaluate Hamass 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,


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viii DOI: 10.1057/9781137310194

Galway, Ireland. The Centre hosted and logistically supported me dur-ing 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 Shaath, and thousands of others.

viii Preface and Acknowledgments


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1DOI: 10.1057/9781137310194

Introduction

Abstract: The introduction provides reader with key themes and methodology of the book, suggesting 2007 as a turning point in Hamas political history, e.g., the transformation of Hamas from a non-state actor fighting for the realization of the right of Palestinians to self-determination from outside the state-like institutions, into a non-state actor fighting for the same right but from within the state institutions. The introduction notes that such transformation in Hamas status entails challenges more to Hamas than anyone else, as Hamas was asked to fight for the realization of the right of Palestinians to self-determination, but, at the same time, to exercise government-like functions that must be held to human rights standards, under certain parameters.

Mukhimer, Tariq. Hamas Rule in Gaza: Human Rights under Constraint. New York: Palgrave Macmillan, 2013. doi: 10.1057/9781137310194.


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2

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Hamas Rule in Gaza

It goes without saying that the year 2007 was a turning point in modern Palestinian political history and in the relationship between Hamas and the Palestinian people. It was in that year that Hamas militants assumed control over security installations and government buildings of the Gaza-based Palestinian Authority (PA), following a week of intensive fighting with PA security forces and militants loyal to Fatah. This week of fighting capped months of sporadic conflict across the Occupied Palestine Territory (OPT), during which hundreds of Palestinians on both sides were killed and injured. Tension between both sides dates back to 2006, when Hamas achieved a sweeping victory in the legisla-tive election and ousted Fatah from political powerafter Fatah had controlled the PAs political and security institutions since the setup of the PA in 1994. After politically defeating Fatah, Hamas proposed a political program that was at odds with that of Fatah, which supports the peace process with Israel and envisions a peaceful means of achiev-ing national liberation.

Initially, the HamasFatah conflict may appear to have been entirely politically driven. However, certain ideological factors, including those related to both sides presumptions about the organization of state and society and the basis of legislation, can in fact be seen to interplay with the more purely political aspects, fuelling the conflict at certain points. Indeed, Hamas has envisaged, theoretically speaking, an ideologically constructed mode of ruling based on Islamic sharia as a source of legis-lation, which is opposed to Fatahs vision of a contractually constructed mode of ruling based on a secular understanding of duties and rights for state and society. Although it is true that the ideological difference between both sides was not the determining factor in the eruption of violence, it later on had certain impacts on Hamass relationship with Gazan residents, notwithstanding Hamass refraining (officially speak-ing) from enforcing the Islamic sharia as a source of legislation in Gaza.

Hamass control of the Gaza Strip has given a new dimension to the conflict between Fatah and Hamas, adding an institutional dimension alongside the already extant political and ideological dimensions. Palestinians of the OPT are now ruled, for the first time in their history, by three authorities simultaneously: (a) Israel, which has remained the paramount authority in the OPT; (b) the PA in Ramallah, running the PAs institutions in the West Bank; and (c) the Hamas government, the emergent Gaza-based authority, running the PAs institutions in the Gaza Strip.


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3Introduction

DOI: 10.1057/9781137310194

In addition, Hamass control of the Gaza Strip has transformed it from a non-state actor fighting for the realization of the right of Palestinians to self-determination from outside the state-like institutions of the PA, into a non-state actor fighting for the same right, but from within the PAs institutions. In essence, Hamas has become a national liberation move-ment resembling a government. The transformation of Hamass status has posed challenges more to Hamas than to anyone else. In addition to the task of fighting for the realization of the right of Palestinians to self-determination, Hamas has been obliged to exercise government-like functions that must be held to human rights standards. Hamas has had to accomplish these two tasks while facing a diplomatic boycott and tight-ened closure imposed by the international community and Israel, both of itself as an organization and of the Gaza Strip generally. Hamas has had to deal also with a continuous Israeli threat to its regime in Gaza.

Yet, the aforementioned constraints (including the conflict with Fatah and the PA in Ramallah) have not deterred the rise of a process of governance in Gaza, although they have had a significant impact on the manner in which Hamas has carried out its government-like functions. Indeed, Hamas has demonstrated a remarkable ability to run the local administration it inherited from the PA. It has acted, at some points, as a modern state-like institution that adopts the coordination approach as key for the functioning of its various agencieswhile introducing new institutions, directives, and measureswith a view to running the daily affairs of Gazas population. Yet, many of these measures have violated human rights standards. Most violations have been undertaken in connection to the conflict with Israel, or with Fatah or with the PA in Ramallah. Few measures and directives have been taken in relation to Hamass religiousideological agenda.

Some remarks on the methodology

The study invokes the topical discussion related to non-state actors and international human rights law, in particular the ways through which non-state actors are to be held accountable to this body of international law. In this connection, I argue that the legal status of a given agent under international lawwhether as a state with a recognized legal personality and ability to be party to any international treaty or as a non-state actor without such recognized personality or ability1is not the only condition


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Hamas Rule in Gaza

for holding such an agent accountable under international human rights law. While this legal status remains important, its absence does not absolve such an agent from its responsibility to uphold internationally recognized legal standards. Any agent remains accountable under international human rights law, inasmuch as it has the capacity to influence the public sphere or engages in a certain dynamic or mode of interaction with society.

Driven by this postulate, the study proposes that as Hamas has come to access, control, and utilize state-like institutions, this has entailed the existence of the dynamic of a governmentsociety interaction and, con-sequently, Hamas may be held accountable for upholding human rights. Accordingly, the study stresses that the Hamas authoritys behavior can still be evaluated according to human rights standards, notwithstanding its legal status as a non-state actor with no ability to be party to various human rights treaties. Yet, the human rights realization under Hamass authority has been shaped and qualified, to a large extent, by the political setting in which this authority has operated, including the conflict with Fatah and the PA in Ramallah, the Gaza closure, the continued Israeli occupation of Gaza, and Israeli threats to the Hamas regime.

Operationally, therefore, the study launches its argument by intro-ducing some theoretical discussion related to non-state actors and the global system of human rights (Chapter 1). It discusses the key attributes of this system: mainly its focus on the state as the only recognized legal duty-holder. It then compares the normative foundation of this system with the normative foundation of international humanitarian law, with a view to establishing some accommodation between this system and non-state actors. As is well known, international humanitarian law has already extended certain legal obligations to non-state actors, holding them accountable under its legal code. Should there be common points between the normative foundation of international humanitarian law and of the global system of human rights one may then deem it legitimate to call for including non-state actors in the global system of human rights.

Chapter 2 provides thorough empirical background on the conflict between Hamas and Fatah and on the rise of Hamas as a non-state actor resembling a government. In this connection, the term Hamas authority is used to refer to the Hamas government in Gaza. Although most of the literature tends to use the term de facto authority to refer to the Hamas government in Gaza, the study suggests Hamas author-ity instead. The study deems the term de facto to entail a certain bias toward a given party at the expense of another. As described below,


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5Introduction

DOI: 10.1057/9781137310194

Hamas has continued to claim that its takeover of the Gaza Strip was a countermeasure against Fatahs persistent attempts to undermine the outcome of the legislative election of 2006 and, hence, that it was legal. Meanwhile, Fatah maintained the claim that Hamass takeover of the Gaza Strip was a coup against the PA and was thus illegal. Therefore, using the term de facto may entail adoption of a given partys position while disregarding the position of the other party and, consequently, risking the studys objectivity. In addition, using this term may entail adoption of the international communitys position boycotting Hamas and categorizing its authority as illegal. The writer does not here wish to enter into this discussion, while believing that the validity of the diplo-matic boycott of Hamas remains doubtful.

The same chapter discusses the operational setting of the Hamas authority in Gaza, including the closure that has been imposed on Gaza since 2007 (in response to Hamass control of the Gaza Strip) and the continued Israeli occupation of Gaza. In this regard the study uses the term closure to describe the tightened restrictions on Gazas imports and exports and on the movement of people from and into Gaza, instead of using the terms siege or blockade that are commonly used. The study postulates that the goal of these measures was neither self-defence (as Israel has alleged) nor to reconquer Gaza (and thus does not con-stitute a siege), nor to induce Hamass surrender through blocking its access to supplies (and thus does not constitute a blockade).2 It is sug-gested, instead, that the overall goal of these measures was to punish the civilian population for exercising their right to select their ruling party in the 2006 elections. In this sense these measures constitute a form of collective punishment that is forbidden under Geneva Convention IV. Meanwhile, the study postulates that the Gaza Strip is still occupied by Israel, with its forces continuing to exercise effective control over it notwithstanding Israels disengagement plan of 2005.

Under this intense external pressure, as discussed in Chapter 3, Hamas was asked to run the government-like institutions in Gaza in accord-ance with human rights standards. In assessing the Hamas authoritys performance in this respect, five rights were selected: the right to life and security, the right not to be subjected to torture, the right to freedom of the press and expression, the right to peaceful assembly, and the right to freedom of association. These civil and political rights impact human beings individually and collectively. They are strongly connected to the freedom of individuals and their right to participate in public life.3


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Hamas Rule in Gaza

Moreover, these rights are not derived merely from political theory (relating to the rise of a contractual relationship between the individual and the governmental authority), but are also associated with the inde-pendent individual in his capacity as a human being. In essence, they are derived from the law of nature and, therefore, their enforcement does not necessitate the existence of a legal code, although such a code might provide further protection.4 Furthermore, these rights are naturally claimed against the ruling authority and, hence, the legitimacy of any authority in the eyes of its population is largely connected to its ability to enforce them.5

Politically speaking, the legitimacy of Hamas in the eyes of the inter-national community seems more connected to Hamass ability to uphold civil and political rights than to its ability to provide economic and social rights. On more than a few occasions the international community has called on the Hamas authority to respect the civil and political rights of Gazas population and to observe international human rights standards. In March 2011, for instance, the UN High Commissioner for Human Rights called on the Hamas authority to comply with international human rights standards, noting serious human rights violations perpe-trated by the authority and its security forces in Gaza, including viola-tions of the right to life and to be free from arbitrary detention, torture, and ill-treatment, and violations of the rights to peaceful association and freedom of the press.6

Last, but not least, the enforcement of civil and political rights entails fewer financial implications compared to the enforcement of economic and social rights. This leaves little room for any authority to absolve itself from the responsibility of enforcing these rights under the pretext of the lack of needed economic resources or because of the intense external economic pressure that it faces, such as certain economic sanctions that may be imposed by the international community on a given authority. Accordingly, any failure on the part of Hamas to enforce these rights remains unconnected to the economic measures imposed by Israel since 2007, including the tightened restrictions on Gazas imports and exports and the subsequent paralysis of Gazas economy. However, these meas-ures have encouraged the tunnel industry, with its disastrous impact on the right to life and security. As described below, the tunnel industry has flourished under Hamass auspices and, therefore, Hamas must bear some further responsibility for violations of the rights to life and security as a result of this industry.


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7Introduction

DOI: 10.1057/9781137310194

In the study, the Hamas authoritys measures regarding the above-mentioned rights are assessed against national legislation, without reference to any international human rights treaty. Yet, the study stresses that some national legislation has already incorporated certain universal human rights principles and norms (for example, some norms incorporated into the Palestinian Basic Law, as will be discussed later). Meanwhile, reference is made to several public undertakings made by Hamas and, previously, by the PA (of which Hamas is now a part), to respect and protect human rights. The study suggests these examples of legislation and undertakings are obligatory legal instruments that are binding on the Hamas authority with respect to the human rights of the population it in effect governs.

The state of the aforementioned rights was assessed during the period from June 2007 to June 2011. That is to say, during the first four years of Hamass uncontested control of the Gaza Strip. The reporting period was selected carefully. As will be explained later on, Hamas has repeatedly claimed that Fatah had deliberately promoted a state of disorder in Gaza, with a view to undermining either the Hamas-led government formed in the wake of the legislative election in 2006 or the national unity gov-ernment formed shortly afterwards (MarchJune 2007). With Hamas assuming uncontested control over the Gaza Strip in June 2007, Fatah disappeared from the Gaza-based PAs institutions, and Hamas was left with the sole responsibility for running those institutions.

The limited territorial scope of this studythe Gaza Stripdoes not necessarily suggest any better human reality under the PA in Ramallah as opposed to that under the Hamas authority in Gaza. On the contrary, reports of human rights violations perpetrated by the security forces of the PA against Palestinians of the West Bankincluding regular arrest campaigns and torture of Hamas members and supporters, banning of their public assemblies and dissolution of their institutionshave con-tinued to surface over the last four years (200711)7 and on some occa-sions have left the Hamas authority liable, by certain actions, to infringe on the human rights of Gazan residents, in particular of Fatah members and supporters.

In undertaking this study, the author relied extensively on UN resolutions and on reports of relevance: reports of Palestinian and Israeli human rights organizations, of international human rights organiza-tions, of major local, Israeli, and international media outlets, as well as on public statements of Hamas officials and ministries and other


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Hamas Rule in Gaza

sources. In assessing Hamass rule during the aforementioned period, the study simultaneously makes use of the legal and political approaches. For instance, in analyzing the motivations of Hamass measures toward human rights, the study utilizes the political approach. Yet, in assessing the measures themselves, the study takes a legal approach, analyzing them in reference to national legislation.

The study is considered unique as far as the reporting period (200711) and the approach adopted (political and, to a lesser degree, legal) are concerned. Apart from Yazid Sayighs (2010) study on Hamas govern-ance (which covers the first two to three years of Hamas rule in Gaza and adopts the institutional approach, and to a lesser degree the political one8) a comprehensive analytical study of the impact of Hamass govern-ance on human rights in Gaza remains unavailable.

Notes

August Reinisch, The Changing International Legal Framework for Dealing 1 with Non-State Actors, in Non-State Actors and Human Rights, ed. Philip Alston (Oxford: Oxford University Press, 2005), 7071.Legal Centre for Freedom of Movement (GISHA), 2 Gaza Closure Defined: Collective Punishment, (December 2008); available from http://www.gisha.org/UserFiles/File/publications/GazaClosureDefinedEng.pdfAlex Conte and Richard Burschill, 3 Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee, 2nd edn. (Way Court East: Ashgate Publishing, 2009), 8594.Michael Freeman, Liberal Democracy and Minority Rights, in 4 Human Rights: New Perspectives, New Realities, ed. Adamantia Pollis & Peter Schwab (London: Lynne Rienner Publishers, 2000), 3234.Ibid.5 A/HRC/16/716 , Report of the United Nations High Commissioner For Human Rights On The Implementation of Human Rights Council Resolutions S-9/1 and S-12/1 (March 3, 2011), available from http://unispal.un.org/UNISPAL.NSF/0/3697D9A1770E0CF98525784D006E01DA [Emphasis added]Palestinian Centre for Human Rights (PCHR), 7 Annual Reports: 2007, 2008, 2009, and 2010; available from http://www.pchrgaza.org/portal/en/index.php?OPTion=com_content&view=category&layout=blog&id=40&Itemid=172Yezid Sayigh, 8 Hamas Rule in Gaza: Three Years on, Middle East Brief No.41 (Brandeis University: Crown Centre for Middle East Studies, March 2010); available from http://www.brandeis.edu/crown/publications/meb/meb41.html


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http://www.gisha.org/UserFiles/File/publications/GazaClosureDefinedEng.pdfhttp://unispal.un.org/UNISPAL.NSF/0/3697D9A1770E0CF98525784D006E01DAhttp://www.pchrgaza.org/portal/en/index.php?OPTion=com_content&view=category&layout=blog&id=40&Itemid=172http://www.brandeis.edu/crown/publications/meb/meb41.htmlhttp://www.gisha.org/UserFiles/File/publications/GazaClosureDefinedEng.pdfhttp://unispal.un.org/UNISPAL.NSF/0/3697D9A1770E0CF98525784D006E01DAhttp://www.pchrgaza.org/portal/en/index.php?OPTion=com_content&view=category&layout=blog&id=40&Itemid=172http://www.brandeis.edu/crown/publications/meb/meb41.html

9DOI: 10.1057/9781137310194

1Non-State Actors and International Human Rights Law: An Overview

Abstract: This chapter introduces some theoretical discussion related to non-state actors and international human rights. In this context, the chapter argues that the legal status of a given agent under international human rightswhether as a state with a recognized legal personality and ability to be party to any international treaty or as a non-state actor without such recognized personality or abilityis not the only condition for holding such an agent accountable under international human rights law. Any non-state actor remains obligated to uphold human rights insomuch as this actor exercises certain control over a population and impacts the public sphere.



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A major consequence of the Second World War was the promotion, led by the United Nations, of a global system of human rightsa system that revolves around the state as a key actor with a high capacity for protecting human rights and, at the same time, with a great potential to infringe upon those rights. Individuals, private groups, and other non-state actors were recognized by this system, but only as potential victims of human rights abuses who have little to contribute to human rights violation and protection. While, under this system, the states protection of human rights includes the prevention of human rights violations by a third party (e.g., a non-state actor), the states fulfillment of its obligation in this respect remains dependent on the extent to which it exercises control over such a third party.

The key principles of this system were laid down by the UNs 1948 Universal Declaration of Human Rights, the preamble of which entrusts only the state with the task of the promotion of universal respect for and observance of human rights and fundamental freedoms . . . in co-operation with the United Nations.1 The state, in this system, is seen not only as a guardian of human rights, but also as an organ with a great potential to violate them. Article 30 of the Universal Declaration of Human Rights prohibits the State . . . to engage in any activity or to per-form any act aimed at the destruction of any of the rights and freedoms set in the declaration.2

Because of the states potential to violate human rights, the preamble of the declaration stresses that the states promotion and protection of human rights would be achieved in co-operation with the UN and, hence, legitimized some international supervision of a statesociety relationship. With this, the manner in which a state treats its people was no longer a matter of exclusive domestic jurisdiction, as the traditional notion of state sovereignty implies.3 In other words, by virtue of the UN Charter of 1945 and the Universal Declaration of Human Rights, the international community was empowered with the right to scrutinize the manner in which a state treats its people. This fact was reaffirmed later in several human rights treaties adopted and human rights bodies cre-ated by the UN. These treaties and bodies place certain legal obligations upon the state and allow the international community to hold the state accountable should it fail to observe its obligations in these treaties.4 In jurisprudence that dates back to 1990, the Inter-American Commission, examining whether non-state actors can violate human rights obligations laid down in the American Convention on Human Rights, summarized


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11Non-State Actors and International Human Rights Law

DOI: 10.1057/9781137310194

the main principles of the global system of human rights with the fol-lowing words:

[T]he individual rights or rights of the person are those recognized in the constitutions of the states as those attributes of the person that the state has the duty to protect by reaffirming them when they are in danger of being violated. . . . This is the classic notion of the role of the state as an organ charged with protecting the individual vis--vis the actions of other individuals or groups[, however, in] situations in which the state, whose function is to protect the individual, becomes his assailant[,] . . . the rights of the individual acquire an added dimension that puts them above the rights of the state and make the individual a subject under international law. Thus, his individual rights can be protected by the international com-munity, organized and juridically regulated by means of treaties. This is the substance of the legal contract between the individual and the state that is formalized in the concept of human rights. . . .5

Although this state-centered system of human rights proved to be successful in institutionalizing state-based mechanisms of account-ability (e.g., treaty-based bodies, Special Procedures, and most recently, Universal Periodic Review), due to its failure to strengthen the principles of human rights interdependency and indivisibility it proved to be inef-ficient in enforcing respect for human rights. For some, the normative foundation of this system (the liberal ideology that advocates a con-tractually constituted state, with no intervention in the private sphere), combined with the nature of its structure (statist), has led to this system putting more emphasis on rights publicly claimed against the state (e.g., civil and political rights) at the expense of rights privately claimed against actors other than state actors (e.g., rights claimed against political fac-tions and non-state paramilitaries, rights claimed in the family sphere, in the market sphere, and in other privately categorized spheres of state non-intervention) and, hence, violating the principles of interdepend-ency and indivisibility of human rights.6

The intrinsic contradiction of the global system of human rights was exposed under globalization,7 which promoted privatization of state sectors (e.g., the shift of many fields from public to private domain),8 and put certain limits on state power, whilst producing a diverse set of actors that work far outside the states control and are noted for their influential role in their societies.9 Subsequently, actors other than state actors have extensively appeared on the international scene and have started to threaten world peace and security and to infringe on human


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rights. For instance, the Stockholm Peace Research Institute documented a total of 24 internal armed conflicts in different parts of the globe in 1997. Meanwhile, at least 14 internal armed conflicts were documented in the period from June 1997 to June 1998, with each conflict claiming on average the lives of around 1,000 people.10

These figures demonstrate the growing influence of non-state actors on the worlds peace and security and their strong competence to inflict harm on civilian life and to infringe on human rights. Despite this, Philip Alston noted with regret, the global system of human rights remains incapable of addressing human rights challenges associated with the rise of these actors and of formally acknowledging their legal responsibilities.11

Non-state actors under international humanitarian law

This evolving reality has left the global system of human rights with sev-eral challenges, the most important of which, some suggest, is the one related to the envisaged legal status of the emerging non-state actors and the subsequent legal obligations that might be extended to them. While this question remains unresolved to date,12 the increasing impact of these actors on human rights leaves the question a valid one, and leaves open the possibility for further intellectual endeavor seeking to answer it, or at least, to look for some accommodation between this system and these actors.

Toward this end, I propose a modest start, by looking at the status of these actors under international humanitarian law, with a view to infer-ring the normative basis, or what I call the normative infrastructure upon which this status was built, before turning to look at the normative basis/infrastructure of the global system of human rights to find out if there are any similarities between both normative infrastructures. This will constitute the cornerstone of my discussion seeking to highlight the theoretical and intellectual justifications for accepting de facto applica-bility of international human rights law on non-state actors.

To start with, international humanitarian lawincluding the law of war, which deals with the conduct of war and seeks to put limits on means and methods of warfare13extends certain legal obligations to non-state actors (including national liberation movements) involved in armed conflicts, as manifested in Common Article 3 of the Geneva


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Conventions and the two protocols additional to the conventions. Common Article 3 binds all types of non-state actors, regardless of the type of conflict or their legal status (a non-international armed conflict that involves insurgencies/belligerencies, or an international armed conflict that involves national liberation movements).14

Additional legal obligations, including those laid down by Protocol II of 1977 additional to the Geneva Conventions, are taken into account in situations of a non-international armed conflict in which armed opposi-tion groups enjoy a responsible command, and a territorial control,15 and fight against the government in power, in an effort to overthrow the existing government, or alternatively to bring about a secession so as to set up a new state. . . .16 Should such armed groups fight against colo-nial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations17 then Protocol I of 1977 additional to the Geneva Conventions replaces Protocol II as a legal regime governing the conflict, which is no longer deemed internal, but rather, international.

Unfortunately, however, there is no precise definition of self-determi-nation as a legal right either in the UN Charter or in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (or General Assembly Resolution 2625 [XV] of 24 October 197018). While both documents proclaim self-determina-tion (Articles 1, 55, and 56 of the UN Charter, and General Assembly Resolution 2625 [XV]) and charge state members with promoting its realization, the declaration refers to self-determination as the right of people to freely to determine their political status, without external interference, and to pursue their economic, social and cultural develop-ment. In essence, the declaration refers to it as a goal to be attained, without specifying its content and, hence, leaving vague the meaning of this right.

Smith (2007) argues that the vagueness of the right to self-determi-nation, as a collective right, has resulted from the lack of internationally agreed criteria upon which a given people may be categorized as entitled to the right to self-determination.19 Nevertheless, Smith points out that the discussion related to the criteria would be irrelevant inasmuch as these people fight against a colonial power or occupation. In this case,


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the only criterion that entitles people to this right is their living in the colonized or occupied territory and their shared desire to remove the colonial regime in question [and] to decide collectively the manner in which they wish to be ruled or governed.20

The view of self-determination as a right exercised mainly by a people under a colonial power is rooted in General Assembly Resolution 1514 (XV) of 12 December 1960, and the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960. Both refer to self-determination as the right of people not to be subjected to alien . . . domination and exploitation, and to freely determine their political status and freely pursue their economic, social and cultural development. . . .21

One may presume, accordingly, that people living under a colonial regime or alien occupation and using violence to bring an end to either are considered as engaged in a national liberation conflict, given that they bind themselves to the obligations laid down in Protocol I. Violence used by these people, however, must not be isolated and sporadic, so that they could bear the rights and obligations laid down by the said protocol which, similar to Protocol II, excludes from its scope isolated and sporadic acts of violence. However, in contrast to Protocol II, which requires territorial control by armed opposition groups, Protocol I does not obligate people fighting for self-determination/national liberation to control a territory, although it calls on them to have some form of organization (e.g., authority) to represent them.22

A normative foundation: international humanitarian law versus international human rights law

As we have seen above, international humanitarian law imposes certain legal obligations on non-state actors (including national liberation movements) involved in armed conflicts. Obviously, the orchestrators of the international law were preoccupied by the human cause and their strong desire to protect humanity when they set the legal norms of the Geneva Conventions and the additional two protocols. In essence, they were driven by a functional approach23 (to protect humanity) when they set the said legal norms and, consequently, focused on what the conflict-ing parties are doing more than on what those parties are. The outcome of such an approach was a group of norms that are mainly concerned


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with the protection of civilians and that hold state and non-state actors alike criminally responsible for the failure to protect civilians.

The motivation of the orchestrators of the international human rights law seems to be similar: the protection of humanity. Indeed, the law initi-ated by the UN Charter (1945) was a direct legal response to the horrors of the Second World War and an enduring endeavor by the international community to avoid a similar war in the future. The law connects world stability and peace with the universal promotion and protection of human rights, stressing that the overall goal of the international com-munity, represented by the UN, is to save succeeding generations from the scourge of war and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.24

The interconnection between human rights promotion and protection on one hand, and building universal peace and justice on the other, was reaffirmed in the Universal Declaration of Human Rights (1948), whose preamble recognizes the inherent dignity and of the equal and inalien-able rights of all members of the human family as the foundation of freedom, justice and peace in the world. Articles 1 and 2 of the same declaration provide for the universality of human rights, stressing the equality of all human beings and their entitlement to these rights in their nature as human beings without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In essence, the normative foundation of the international humanitar-ian law that imposes certain legal obligations on non-state actors is the same as the normative foundation of the global regime of human rights. Indeed, both seek to protect humanity, and to minimize suffering of innocent people, without distinction of any sort.

Rethinking the global system of human rights: toward an inclusive, non-statist model

Unlike the international humanitarian law which adopts a functional approach to address its concern and, hence, knowledge of legal responsi-bilities for the diverse actors in a war (as manifested in the legal obligations imposed on state and non-state actors to protect civilians), international human rights law, which was driven by the same concern of international humanitarian law (the human cause, as mentioned above), adopts a


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different approach to address its concerns (the institutional approach25), thereby producing a human rights system considering the state as the only body responsible for human rights protection and violation and, accordingly, as the key legal subject. From this premise it followed that a states legal personality under this system was established in reference to the legal obligations and rights extended to it by this system.

Reinisch (2005) suggests this rationale as a backdrop against which one may argue in favor of the recognition of individuals and other non-state actors as being a partial subject of international human rights law and, thus, as actors qualified to be incorporated at a later stage into the global system of human rights. Reinisch builds his argument on the basis of the legal obligations with which these actors are endowed by this law, as demonstrated in some articles laid down by the Universal Declaration of Human Rights and in the General Comments of some treaty-based bodies. Article 30 of the Universal Declaration of Human Rights prohibits a group or person . . . to engage in any activity infring-ing human rights. Meanwhile, the preamble of the same declaration calls individuals and every individual and every organ of society [to] strive . . . to promote respect [and] to secure . . . universal and effective recognition and observance [of human rights]. Reinish noted that the UN Committee on Economic, Social, and Cultural Rights occasionally had recognized responsibilities of individuals and other non-state actors for the promotion of human rights.26

In the same vein, international legal practices increasingly had been recognizing some human rights legal obligations to individuals and non-state actors, as demonstrated in a number of resolutions adopted either by the Security Council, the General Assembly, the UN Commission on Human Rights and, most recently, the Human Rights Council (HRC). Some of these resolutions, which remain situation-specific and binding only to the countries addressed (particularly those resolutions adopted by the Security Council27), call certain non-state actors either to observe international human rights standards or to cease their violations of human rights. Zegveld (2002), for instance, documented a number of these resolutions, including: 1998 Security Council Resolution 1193 calling on the Taliban regime in Afghanistan to observe international human rights standards and to end discrimination against women; General Assembly resolution 3452 (xxx) of December 1975,28 which was adopted as a guideline for all state and other entities exercising effec-tive power; the UN Commission on Human Rights resolution 1997/47


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calling parties to the conflict in Somalia to respect human rights; and the UN commission resolution on human rights and terrorism (1994), in which the commission expressed deep concern over gross violations perpetrated by terrorist groups.29

In 2003, the Security Council adopted a resolution regarding the situation in Liberia, calling on all parties to cease . . . use of child sol-diers [and to] cease all human rights violations and atrocities against the Liberian population. . . .30 Similarly, in 2006, the Security Council adopted a further resolution entitled, Threats to international peace and security caused by terrorist acts, wherein it expresses its deep concern about the increased violent and terrorist activities in Afghanistan of the Taliban and Al-Qaida, and other individuals, groups, undertakings, and enti-ties associated with them, for ongoing and multiple criminal terrorist acts aimed at causing the death of innocent civilians and other victims. . . .31

On 25 February 2011 the HRC adopted a resolution (S-15/2, Situation of Human Rights in the Libyan Arab Jamahiriya) dispatching an independent, international commission of inquiry on Libyas civil war, and asking it to investigate

all alleged violations of international human rights law in Libya, to establish the facts and circumstances of such violations and of the crimes perpetrated, and, where possible identify those responsible to make recommendations, in particular, on accountability measures, all with a view to ensuring that those individuals responsible are held accountable. . . .32

Although the mandate granted for the commission did not clearly address non-state actors in Libya as potential perpetrators of human rights violations, the commission itself interpreted it as covering, among other things, violations perpetrated by state actors and non-state actors, including by armed opposition groups fighting against the Ghadhafi regime. In its report submitted to HRC in June 2011, the commission stated that it decided to consider actions by all parties that might have constituted human rights violations throughout the Libyan Arab Jamahiriya. . . .33 In essence, the commission was of the view that inter-national human rights law applied to armed opposition groups in Libya and to their representative political body, the National Transitional Council (NTC).34

The general trend of international legal practices, accordingly, is to extend some legal obligations to non-state actors. However, the type of obligations being extended to these actors remains connected, as it


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seems, to the de facto capacity of these actors to uphold human rights. For instance, in situations when non-state actors do not control ele-ments of a governmental authority (e.g., some Somali non-state actors,35 Al-Qaida, and presumably non-state actors in Liberia), the type of rights that might be enforced by these actors are usually different from the type of rights that might be enforced by the same actors in the control of governmental authority elements.

Normally, non-state actors in the control of elements of governmental authority are in a better position to uphold human rightsincluding those rights the protection of which requires the existence of some governing institutions (e.g., right to fair trial, right of victims of human rights abuses to reparation)than are actors who are not in the control of governmental authority elements. The latter type of actors may have the capacity to uphold certain rights, such as the right to life and right to security, through physically refraining from infringing upon these rights, but they would not have the capacity to uphold other rights such as right to a trailtrial and the right of victims to reparations. The observance of these rights requires, normally, the establishment of a complicated set of legal institutions to enforce law and administer justice.

Thus, international legal practices addressing non-state actors that are not in a control of governmental authority elements are likely to appear concerned with right to life and security more than any other rights. For instance, resolution S/RES/1509 (2003) on Liberia expressed the Security Councils utmost concern over atrocities against civilian populations, including widespread sexual violence against women and children. By the same token, the resolution of Threats to international peace and security caused by terrorist acts, expresses the councils deep concern about the increased violent and terrorist activities by the ter-rorist groups, as mentioned above. Similarly, the Report of the Special Rapporteur on the Situation of Human Rights in Somalia (1998), noted the continued violence against life, in particular murder, mutilation, and cruel treatment and torture.36

Similar international practices addressing those non-state actors who are in the control of governmental authority elements tend to show concerns over further rights alongside the right to life and security. For instance, the International Commission of Inquiry on Libya, which accused the armed opposition groups in Libya of perpetrating violations of human rights (although not amounting to crimes against humanity37), called on the NTC, which was in control of the eastern part of Libya


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(including Benghazi, Tobruk, Darna, al-Bayda, Al-Jabal Al-Akhdar), and already had resembled a government by the time the commission launched its investigation (1028 April 2011) in order to, among other things, (a) conduct exhaustive, impartial and public investigations into all alleged violations of international human rights law and international humanitarian law; (b) grant adequate reparations to the victims or their families, and to take all appropriate measures to prevent the recurrence of such violations; (c) make further efforts to ensure strict control over weapons in the possession of individuals; and (d) ensure free, full and unrestricted access to all places of detention for humanitarian and human rights organizations.38

In essence, the commission concluded that the NTC, as a body controlling a significant portion of Libyas territory and resembling a government, was competent enough to bear certain legal obligations, including those obligations the fulfillment of which requires the exist-ence of certain legal institutions (e.g., for the conducting of exhaustive, impartial and public investigations, for granting adequate reparations to the victims or their families, for implementing certain measures with a view to preventing the recurrence of such violations, and so on).

One may conclude, therefore, that the commission, led by one of the most authoritative international experts in the field of international criminal law, Charif Bassiouni, had advocated what I call the relativist approach in endowing non-state actors with certain legal obligations, connecting certain types of these obligations to the context in which the endowed non-state actors operate. Andrew Clapham had earlier advocated de facto applicability of human rights obligations to non-state actors to the extent appropriate to the context.39

While leaving open the possibility for non-state actors that do not resemble government or do not control elements of a governmental authority to assume de facto and limited human rights obligations in the light of their competence to influence some human rights (e.g., right to life and to security, as mentioned previously), the abovementioned approach of the commission of inquiry presumes that non-state actors resembling a government or controlling elements of a governmental authority are competent to impact a wider range of human rights. This approach furthermore begs the conclusion that the reality of human rights exists not only in the relationship between government and gov-erned, or in the power and authority of the state (as traditional human rights theory suggests), but also in the public sphere, where human


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rights violations are perpetrated either by state actors or non-state actors.40 In this case, Andrew Clapham wrote, efficient protection of human rights requires individuals or private bodies . . . not to subject others to indignities, and [at the same time] not to thwart the collective good[;] this is completely consistent with the tenor of Article 29 of the Universal Declaration of Human Rights but denies the role of the state as guarantor of this state of affairs.41

Notes

By the same token, article 56 of the UN Charter calls states to take joint and 1 separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55. Among other things, Article 55 refers to the universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.Groups and persons were charged with the same duty according to the same 2 article, but the state representing them remains the main body to be held accountable for their behavior.By the traditional notion of state sovereignty, I refer to a states absolute 3 right to decide the manner in how it treats its own people without the intervention of other states, or international organizations. The relationship of any state with its people is perceived, according to this notion, as a states own business, and as a matter of exclusive domestic jurisdiction in which no other state or international organization whatsoever has the right to intervene. This notion, first promoted by the French Philosopher Jean Bodin and later endorsed by the Treaty of Westphalia (1648), promoted an international order centering around the state as the only legal entity with certain legal responsibilities and rights. However, these legal responsibilities and rights are related to inter-state interactions, more than to statesociety interactions. Thereby, an individual, according to this notion, is considered as a mere object, possessing no rights under international law. See Paul Gardon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998), 2627.Apart from the International Bill of Human Rights (which is considered the 4 cornerstone of the global system of human rights, and which refers to the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and its two optional protocols, and the International Covenant on Economic, Social and Cultural Rights), there are nine core international human rights treaties, each of which has established a monitoring body composed of a number of international legal experts


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DOI: 10.1057/9781137310194

(called a treaty-based body) to monitor states observance of their obligations in these treaties. All of these treaties obligate states parties to respect, protect, and fulfill human rights laid down by the treaty at issue. The states obligation to respect human rights refers to the states duty not to intervene in the enjoyment of human rights by individuals. The states obligation to protect human rights refers to the states duty to prevent violation of human rights by a third party, and its obligation to fulfill human rights refers to its duty to take appropriate measures (legislative, financial, administrative, and so on) to ensure full realization of certain rights. See Henry J. Steiner, Philip Alston, and Rayan Goodman, International Rights in Context: Law, Politics, Morals, 3rd edn. (Oxford: Oxford University Press, 2007), 66975. See also Martin Scheinin, Characteristics of Human Rights Norms, in International Protection of Human Rights: A text Book, eds. Catarina Krause and Martin Scheinin (Turku: Institute for human rights/Abo Akademi University, 2009), 2729.As quoted, and slightly reformulated, in Liesbeth Zegveld, 5 Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002), 4041.Though private spheres are naturally regulated by the state (e.g., laws 6 regulating marriage, inheritance, market relations, and others) the liberal principle of state non-intervention in the private spheres leaves human action taken in these spheres less scrutinized and monitored by state than human action taken in the public sphere. See Zahra F. Kabaskal Arat, Looking beyond the State but not Ignoring it: A Framework of Analysis for Non-State Actors and Human Rights. See also Michael Goodhart, Human Rights and Non-State Actors: Theoretical Puzzles, in Non-State Actors in the Human Rights Universe, ed. George Andreopoulos et al. (USA: Kumarian Press, 2006), 319, 2339.The concept of globalization is used to describe a process that is 7 characterized by a rapid, extended, and intensive mode of interactions among people and goods worldwide. In this mode of interactions, a decision or event in one part of the world affects people in a distant part. Globalizations impact is far-reaching and touches societys sectors, including political, economical, cultural, human rights, and moral sectors. See Sia Spiliopoulou Akermark, Human Rights, Globalization, Trade and Development, in International Protection of Human Rights: A Text Book, ed. Catarina Krause and Martin Scheinin (Turku: Institute for human rights/Abo Akademi University, 2009), 34347.Andrew Clapham, 8 Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006), 812.Ibid., 1215.9 As reported in Zegveld, 10 Accountability, 12.


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Hamas Rule in Gaza

Philip Alston, The Not-a-Cat Syndrome: Can the International Human 11 Rights Regime Accommodate Non-State Actors?, in Non-State Actors and Human Rights, ed. Philip Alston (Oxford: Oxford University Press, 2005), 136.Ibid.12 For a discussion of the law of war see Leslie C. Green, 13 Essays on the Modern Law of War, 2nd edn. (Ardsley, New York: Transnational Publishers, 1998).This article obligates parties to the conflict to treat protected persons (mainly 14 civilians, non-combatants, and persons who are placed hors de combat) humanely, without distinction of any sort. With a view to realizing this goal, it forbids certain acts, including murder, torture, cruel, humiliating, and degrading treatment, taking of hostages, and unfair trial. See Heather A. Wilson, International Law and the Use of Force by National Liberation Movements (Oxford: Oxford University Press, 1988), 4248.The territorial control envisaged in the Protocol does not necessarily imply 15 the establishment of a governmental administration on the territory captured by the armed opposition groups. In fact, the Protocol defines territorial control in a very restricted military sense: only to enable these groups to carry out sustained and concerted military operations and to implement this protocol. As Article 1 (1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) stipulates; available from http://www2.ohchr.org/english/law/protocol2.htm. In essence, the international humanitarian law excludes acts of rebellion (which involves isolated and sporadic acts of violence, with no territorial control by armed opposition groups), from its scope, considering them as a states exclusive concern, and which are to be governed by domestic law. See Green, Essays, 66. See also Wilson, International Law, 2228.Zegveld, 16 Accountability, 1. It is important to mention in this regard that no armed forces of other states should be involved in the conflict, so that the conflict is deemed as internal. Meanwhile, other treaty law, including the Cultural Property Convention of 1954 and 2nd protocol 1999, in addition to the Weapons Convention of 1980, may govern the conflict. However, it is beyond the scope of this study to discuss these treaties. For discussion, see The Manual on the Law of Non-International Armed Conflict With Commentary (Sanremo Manual.) (Sanremo: International Institute of Humanitarian Law, 2006), available from http://www.dur.ac.uk/resources/law/NIACManualIYBHR15th.pdfArticle I (4) of the Protocol Additional to the Geneva Conventions 17 of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), (8 June 1977); available from http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079


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DOI: 10.1057/9781137310194

Available from http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/18 NR0/348/90/IMG/NR034890.pdf?OpenElementRhona K.M. Smith, 19 International Human Rights (Oxford: Oxford University Press, 2007), 25457.Ibid., 25758.20 Wilson, 21 International Law, 6771.Such an authority may announce its intention to abide by the protocol. See 22 Ibid., 15166.This concept, which presumes the existence of the reality of the human 23 beings welfare in every sphere in which power and authority are exercised, including, but not limited to, the states power and authority (or the relationship between government and governed), was borrowed from Goodhart, Human Rights and Non-State Actors, 3638.As the preamble of the UN Charter stipulates.24 Contrary to the functional approach, this approach conceives the reality of 25 a human beings welfare to exist only in the states power and authority, or in the relationship between the government and governed.Reinisch, The Changing International Legal Framework, 7071.26 These resolutions are considered binding for the concerned parties. Chapter 27 VII of the UN Charter (in particular Articles 39, 40, and 41), empower the Security Council with the right to determine the existence of any threat to international peace and security, and to take the necessary measures (including the use of violent, and non-violent means) to restore peace and security in the world.Referring to the Declaration on the Protection of all Persons from Being 28 Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.Zegveld, 29 Accountability, 4749, 14951.S/RES/1509 (2003), available from http://daccess-dds-ny.un.org/doc/30 UNDOC/GEN/N03/525/70/PDF/N0352570.pdf?OpenElement [Emphasis added]S/RES/1735 (2006), available from http://daccess-dds-ny.un.org/doc/31 UNDOC/GEN/N06/680/14/PDF/N0668014.pdf?OpenElement [Emphasis added]A/HRC/S-15/2, 32 Situation of human rights in the Libyan Arab Jamahiriya (February 25, 20l1), available from http://www.foreignpolicy.com/files/fp_uploaded_documents/110225_Ad%20adOPTed%20_resolution.pdfA/HRC/17/44, 33 Report of the International Commission of Inquiry to Investigate All alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya. 2, (June 1, 2011), available from http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.44_AUV.pdf


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DOI: 10.1057/9781137310194

Hamas Rule in Gaza

The NTC, which was established in the city of Benghazi on March 5, 2011, 34 was said to work as an interim government until such time as violence stops and Gaddafi and his political repressive regime are removed, and power can be handed over to a freely elected government governed by a genuinely democratic Constitution that will establish the capital in Tripoli. In September 2011, on the eve of the fall of Ghadhafi regime, the United Nations recognized it as holding Libyas seat at the UN. NTCs Official Website http://www.ntclibya.com/InnerPage.aspx?SSID=6&ParentID=3&LangID=1 and Wikipedia http://en.wikipedia.org/wiki/National_Transitional_CouncilZegveld, 35 Accountability, 150.Report of the Special Rapporteur, Ms. Mona Rishmawi, Submitted in Accordance 36 with Commission on Human Rights Resolution 1997/47 (January 16, 1998), 4, available from http://www.asylumlaw.org/docs/somalia/country_conditions/UNHCR98_situtation.pdfA/HRC/17/4437 , Report of the International Commission of Inquiry, 78.Ibid., 8384, [Emphasis added].38 Clapham, 39 Human Rights Obligations, 284.Public sphere refers to the sphere relevant to societys interest. Andrew 40 Clapham, Human Rights in the Private Sphere (Oxford: Oxford University Press, 1996), 13446.Ibid., 146. Among other things, the said article stipulates: (1) Everyone has 41 duties to the community in which alone the free and full development of his personality is possible, (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.


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25DOI: 10.1057/9781137310194

2The Rise of Hamas as a Non-State Actor Resembling a Government: Background and Operational Setting

Abstract: This chapter introduces a thorough empirical background of the conflict between Hamas and Fatah and the rise of Hamas as a non-state actor resembling a government; at the same time the chapter provides a detailed analysis of the operational setting of the Hamas authority in Gaza. The chapter argues that the case of the Hamas authority as a non-state actor impacting Gazas public sphere is unique, noting the parameters under which the Hamas authority has been operating since 2007, including: the continued Israeli occupation of Gaza; the diplomatic boycott and tightened closure imposed by the international community and Israel (both on the authority itself as an organization and on the population of the Gaza Strip generally), and the political conflict between the Hamas authority in Gaza and the Palestinian Authority (PA) in Ramallah.



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26

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Hamas Rule in Gaza

On 14 June 2007, Hamas militants seized the PAs security installations and government buildings in the Gaza Strip after about a week of inten-sive military combat with PA security forces and militants loyal to Fatah. A total of 161 Palestinians were killed, including 41 civilians (of whom 7 were children and 11 were women) and at least 700 were injured, accord-ing to Palestinian Centre for Human Rights (PCHR).1 Hamass takeover of the PAs security installations and government buildings in the Gaza Strip followed months of factional fighting between Hamas militants on one side and PA security forces and Fatah militants on the other.2

Indeed, the conflict between both sides dates back to January 2006, when Hamasunde

hamas rule in gaza ||

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