Since its establishment in 1994, the Palestinian National Authority (“PNA”) has issued 131 death sentences against Palestinian civilians charged with various crimes. To date, at least 29 of these sentences have been carried out. Sixteen executions were carried out by the Hamas de facto government in Gaza, which resumed executions in 2009, while the remaining 13 executions were carried out by the PNA in the West Bank. All of the PNA’s executions were carried out before 2005. This last fact illustrates the divergent policies by the PNA in the West Bank and the Gaza de facto government regarding the issue of the death penalty.
Indeed, one of the main barriers to abolition of capital punishment in the PNA is the state of deep fragmentation that characterizes the PNA in the Occupied Territories (“POT”). This fragmentation is partly political: in 2007, inter-Palestinian clashes in the Gaza strip between Fatah and Hamas factions led to the establishment of two contesting Palestinian authorities, one in the West Bank controlled by President Mahmud Abbas and the Fatah, and another in the Gaza strip as a de facto administration controlled by Hamas. The question of the death penalty became a highly political issue between these two parties in 2009 after president Abbas’ term in office expired. No elections could be held to replace him because Hamas and Fatah failed to reach a political settlement regarding the necessity for new elections. The political differences between the two authorities are exacerbated by the Israeli siege on the Gaza Strip that has isolated Gaza from the outside world and from the rest of the West Bank, as well as the international political and economic pressure exerted on the PNA, mainly by the American administration and Israel, to resist accommodating Hamas (thereby preventing national unity in the POT). This inability to hold new elections, amongst other things, meant that there was a constitutional vacuum regarding the question of the ratification of death sentences, since imposing the death penalty under the Palestinian judicial system requires the approval of the PNA President. This constitutional vacuum led the Interior Ministry in Gaza to resume carrying out death sentences without the mandated presidential approval.
The interior minister’s decision in Gaza to carry out death sentences has more to do with inter-Palestinian political struggles over constitutional power than with the actual debate on the question of the death penalty in Palestinian society. The decision was designed to challenge President Mahmoud Abbas’s presidential authority on the one hand, and on the other, to assert Hamas’ political authority and constitutional legitimacy as the sole legally elected government in the Palestinian occupied territory. This decision is consistent with a growing political and legal strategy adopted by both sides that adds to an ever-growing number of human rights violations and breaches of the rule of law in an effort to oppress political opponents on both sides in the controlled area. As such, the resumption of death penalty was accompanied by other human rights violations like widespread torture, the increased use of military courts for both criminal and political prisoners, and a general disrespect of the law.
But the fragmentation in the PNA over the application of the death penalty is not merely political: its origins are rooted in the unique and complex legal, geographical and historical context of the POT and the creation of the PNA. No fewer than three different Penal Codes entrench the death penalty. These codes are the Jordanian Penal Law No. 16 of 1960 which contains sixteen different crimes punishable by death (this code is applicable to the West Bank); the Penal Law No. 74 of 1936 amended by Egyptian Military Decree No. 555 of 1957, which contains fifteen different capital crimes (this code is applicable in the Gaza strip); and lastly the PLO Revolutionary Code of 1979 that was applicable to the diaspora and which contains 42 different crimes punishable by death. These different codes are, as one can imagine, archaic, ambivalent in their language, and most important many of the capital offenses they define have to do with political crimes against the states.
Jurisdiction over capital crimes is also fragmented: some capital crimes are referred to military courts or state national security courts, and others are referred to civilian courts. This fragmentation creates problems such as the arbitrary use of a court by the state, or civilians being charged in military courts, thus violating their rights to due process as well as their rights to appeal. The fragmentation of the judicial system and the involvement of military courts in civilian life weakens the power of the judicial system to develop better legal protections for individuals charged with capital crimes.
The judicial system is further compromised by Israel’s application of its own legal system in the occupied territories, which weakens the PNA judicial system and prevents it from developing a strong, independent and coherent judiciary that can restrain the executive branch.
There are of course many other continuing obstacles to the ongoing attempts by civil society, legislatures and national and international bodies to bring the PNA to abolish the death penalty - such as the ongoing Israeli occupation, the Israeli use of Palestinian collaborators for targeted killing, the enforcement of Israel’s security apparatus that undermines the PNA’s effective control over its population in terms of maintaining law and order, and finally the ongoing political crises of 2007 and the constitutional crises of 2009. One possible and effective solution to these crises would be the creation of a new unitary PNA Penal Code and the abandonment of the other Penal Codes along with the death penalties they mandate. To reach this outcome, however, the PNA must hold new elections or establish an interim government with Hamas that will have the mandate to revise the PNA Penal Code. In the short term, the president of the PNA, Mr. Abbas, can issue a presidential decree declaring that he will not sign any execution orders until a more modern and unified Penal Code is implemented. One more step towards abolition would be for the PNA to sign the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, in order to establish an international obligation for the future PNA government to abolish the capital punishment in law.
-- Tamer Massalha