Nour Odeh
Al Jazeera English
October 9, 2007 - 2:46pm

Gaza's paralysed legal system has left the territory in chaos, but recent steps taken by Hamas to resolve the issue have been criticised both by Hamas's rival Fatah faction and by human rights groups.

Attempting to consolidate its control of the territory, Hamas's 8,000-strong Executive Force, accused by Fatah of torture and mistreatment, has been designated Gaza's new police force.

Now, alongside that move, the de facto government in Gaza is working on the judiciary.

The Palestinian territory already had a serious backlog of criminal cases prior to June when Hamas seized control.

But acting on orders from Mahmoud Abbas, the Palestinian president based in the West Bank, the judiciary in Gaza essentially ceased to function after the Hamas takeover.

In early September, in a bid to end the stalemate and further consolidate its hold over the Gaza Strip, Hamas replaced unco-operative judges.

More recently it announced the formation of a Higher Judicial Council to look into criminal cases and replace the existing Supreme Judicial Council.

Law and order

The council, composed of six lawyers, is to look into criminal cases and will employ the judges and lawyers recently appointed by the Hamas government.

Human rights groups have criticised the new Supreme Judicial Council, calling on Hamas to respect the existing legal bodies.

While Hamas is not changing the provisions of Palestinian law, rights organisations say, the move violates the judiciary's independence.

Isam Younis, director of the al-Mezan Association for Human Rights, told Al Jazeera that rights groups were concerned that the questionable status of the council would mean "that all cases that are submitted for the courts review will be easily challenged at a later stage".

"To have two parallel systems is quite unique and unprecedented in any case," he said.


The Palestinian administration in the West Bank, headed by Abbas, has condemned the move.

Issa Abu Sharar, the chief justice of the Palestinian High Court, said: "First of all, the [Hamas] government is illegitimate and even if it were legitimate, it has no right taking any step relating to the judiciary.

"Any such step is illegitimate and illegal - it's a violation of the judiciary's authorities."

While Hamas concedes the newly formed body is not stipulated in the Palestinian Basic Law, it says it is needed to bring order to Gaza and looks unlikely to reverse its decision.

Abdel Rauf al-Halabi, head of Hamas-formed Higher Judicial Council, told Al Jazeera: "Those in charge don't want to assume their responsibilities, but when we appoint judges to achieve what is needed, they say it's illegal. This is legal and doesn't contravene the basic law. We are at a time of need."

When Hamas helped free Alan Johnston, the BBC reporter kidnapped in the Gaza Strip, many hoped it showed the group had the ability to bring order to the territory.

But, beset by sanctions and now designated an "enemy entity" by Israel, Hamas has struggled to provide for the strip's 1.4 million inhabitants and strengthen law and order.

Names and legal jargon are largely unimportant to Gaza's residents, who know that the new Higher Judicial Council is, at least for the time being, their only real legal reference.

Their fear is that this may be another step towards formalising the split between Gaza and the West Bank.


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