LEGAL SYSTEMS AND DEVELOPMENTS IN PALESTINE*

in The Palestine Yearbook of International Law Online
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LEGAL SYSTEMS AND DEVELOPMENTS IN PALESTINE*

in The Palestine Yearbook of International Law Online

References

  • * The writer wishes to acknowledge the advice and assistance of Henry Cattan in the preparation of that portion of this study that deals with the Mandatory era; Jonathan Kuttab for his contribution to the section on Israel's occupation and military orders; and finally, to Sabri Jiryis for his contribution on Israel's phase of legislation and for his over-all review of, and comments on this study. However, the responsibility for any error rests with the writer alone.

  • 1. The southern borders between Palestine and Egypt were determined by the agree- ment signed in 1906 between England and the Ottoman Empire. See Correspon- dence Respecting the Turco - Egyptian Frontier in the Sinai Peninsula (with a map), Cmd. No. 306, Egypt No. 2 ( 1906). The borders between Palestine on the one hand and Syria and Lebanon on the other were demarcated by virtue of two agreements between England and France. For the first, see Great Britain, Parliamentary Papers, Franco-Egyptian Convention of December 23rd, 1920 on Certain Points Connected with the Mandates for Syria and Lebanon, Palestine and Mesopotamia, Cmd. No. 1195, Miscellaneous No. 4 (1921). For the second agreement, see Great Britain, Parliamentary papers, Agreement between His Majesty's Government and the French Government Respecting the Boundary Line between Syria and Palestine from the Mediterranean to Al-Hamme, Cmd. No. 1910 ( 1923). The eastern borders were determined by Great Britain in September 1922, and the League of Nations was informed accordingly. See Mandate for Palestine, together with a Note by the Secretary General relating to the Territory Known as Transjordan, Cmd. No. 1785 ( 1922). It should be also pointed out that by virtue of an Order issued by the High Commissioner for Palestine, the Palestine Order-in-Council of 1922 did not apply to the territory lying east of the River Jordan. See the Official Gazette (of Palestine), Extraordinary Issue, dated September 1, 1922, at 16. 2. The ensuing text is based on Khadduri & Liebesny eds., Law in the Middle East 279-308 (1955).

  • 3. Waqf, in Muslim law means the appropriation, in perpetuity, of any particular thing for the benefit of a particular charitable purpose. This is similar, to some degree, to what other law systems recognize as charitable foundations and trusts. See Id. at 203 and passim. 4. General Allenby entered Jerusalem on December 9, 1917, but the northern parts of Palestine were not occupied until September 1918. The High Commissioner for Palestine determined August 6, 1924, as the day on which the state of war with Turkey was terminated. See the Official Gazette (Palestine) No. 125, October 15, 1924, at 840. 5. The first issue of the Official Gazette of Palestine was issued on July 15, 1919, under the authority of O.E.T.A. (South). Beginning with issue No. 24 of July 25,1920, the Official Gazette was published under the authority of the "Government of Pales- tine". 6. Herbert Samuel was a committed Zionist of Jewish faith. His arrival at the end of June 1920 "marked the beginning of a new chapter in Palestine and Jewish history... a definite policy of facilitating the establishment of a Jewish National Home took the place of vacillation and uncertainty", Bentwich, My Seventy Seven Years - An Account of My Life and Times,(1961), at 64. Bentwich recorded that Samuel was assisted by several senior aides, some of whom were Zionists or in support of the Zionist project in Palestine. Id. at 66 - 67. 7. O.E.T.A. (South) became a civil administration on July 20, 1920, under the name of the Government of Palestine. See, Official Gazette (Palestine) No. 24, July 25, 1920.

  • 8. I am in debt to Dr. George Tomeh, the Syrian Ambassador Extraordinary and Plenipotentiary and the Permanent Representative of Syria at the United Nations, for drawing my attention to the fact that at this historical juncture, Palestine was still part of Syria, and consequently fell under the jurisdiction of King Faisal's short-lived Government that was established in Damascus between October 1919 and July 1920. Elections to the Syrian Congress were held in early June of 1919 and it was convened on June 6, 1919, with 83 representatives, 17 of whom came from various Palestinian cities and towns. The Congress enacted the first Constitution of the State which granted autonomy to the administrative units constituting the State; namely what are now known as Syria, Lebanon, Palestine and Jordan. See Khoury, UrbanNotablesandArabNationalism-ThePoliticsofDamascus 1860-1920 (1983); The Memoirs of Yusuf Al-Hakim, Syria and the Faisali Era (in Arabic, 1980); El Ayyashi, The Political History of Syria from the Mandate to the Coup d' Etat - 1918 - 1954 (in Arabic, 1954). 9. The text of this Proclamation is reproduced in Arabic in El-Murr, Land Laws Applied in Arab Countries Detached from the Ottoman Sultanate, at 138-140 (in Arabic, 1923). 10. Official Gazette (Palestine) No. 28, October 1, 1920. 11. Compare, e.g. Article 6 of the Ordinance with Article 1 1 of the Ottoman Land Law which provided that the land of an Ottoman subject who relinquished his citizen- ship without permission could not devolve on any of his heirs whether they were Ottomans or of foreign nationality. 12. Compare, e.g., Article 8 of the Ottoman Land Law with Article 8 of the Ordinance. See El-Murr, supra note 9, at 54-61. See also "Ordinance" published in Official Gazette (Palestine) No. 36, February 1, 1921, at 9-10. Proclamation No. 152 dealing with lease of immovable property provides in Article (1) that any natural or corporate person "desiring to acquire immovable property with a view either to the promotion of any urgent Industrial, Commercial or Economic enterprise or for some other purpose of recognized Public Utility may acquire such property" by a three-year old lease renewable with the option "to purchase the property comprised within such lease". Article (5) granted the Chief Administrator the "absolute discretion" to interpret the expressions "Industrial, Commercial or Economic enterprise" or the purpose of "Public Utility". See Official Gazette (Palestine) No. 17, March 16, 1920, at 1-2.

  • 13. See Official Gazettel (Palestine) No. 28, October 1, 1920, at 5. 14. For his official appointment, see Official Gazette (Palestine) No. 24, July 25, 1920, at 2. Bentwich was, at the time of his appointment a committed Zionist, as well as other civil servants who were appointed by Herbert Samuel as it "was not then a disqualification for high office to be a Jew and a Zionist". Bentwich, supra note 6 at 67 15. Official Text, Cmd. No. 1785. 16. Official Gazette (Palestine) No. 125, October 15, 1924, at 840. 17. Official Text, Cmd. No. 1929. 18. III Drayton, The Laws of Palestine at 2569 (revised ed. 1934). See also Official Gazette (Palestine) Extraordinary Issue of September 1, 1922.

  • 19. Israel's Provisional State Council is the precursor of the Knesset (Israel's Parlia- ment). The Council was constituted at the termination of the Mandate by the Va'ad Leumi (the National Council of Jewish Settlers in Palestine), and assumed a defacto legislative authority. At the end of January 1949, the first elections in Israel were held, and the new Constitutive Assembly was convened in February 1949. At that first meeting, the new assembly called itself the "Knesset". 20. 1 Laws of the State of Israel (hereinafter cited as LSI) 7 at 9 (1948). All laws issued by the Council were called "Ordinances", but after the Knesset came into existence, they were named "Laws". Ordinances used to be issued in an Official Gazette called Iton Rishmi, but "Laws" have been published in Reshumot which is still Israel's Official Gazette. 21. The ensuing text is based on a study prepared by this writer entitled The Legal Status of the PQlestinian People Today and submitted to the International Conference on the Question of Palestine, held in Geneva in August 1983. 22. 17 Int'l. L. rep. at 111 and 112 (1950).

  • 23. Art. 18 (a). For the text of the Law, see 6 LSI at 50 (1952). Ammendments thereto are in 12 LSI at 99 (1958); 22 LSI at 241 (1968); 25 LSI at 117 (1971); 34 LSI at 254 ( 1980). 24. In an apparent attempt to remedy this awkward situation, an amendment to the Law was introduced in 1968. However, the conditions introduced by the new amendment are even harsher than those provided for in Art. 3 (a) of the Law. See Rubenstein, Israel Nationality, 2 Tel-Aviv Univ. Studies in Law 159 at 173-174 ( 1976). 25. 4 LSI at 114 ( 1950). Amendments thereto are in 8 LSI 144 (1954); 24 LSI 29 (1970). 26. See the excellent and carefully documented study of Jiryis, The Arabs in Israel, 9 and passim (1976). 27. Int'1. Herald Tribune, Mar. 26-27,1983. Jerusalem Post Int'l, Mar. 27-Apr. 2,1983. For Israel's High Court of Justice reaction to this law, see the Jerusalem Post Int'l, May 8-14, 1983. For other examples of discrimination against Palestinian Arabs in Israel, see Lustick, Arabs in the Jewish State (1980).

  • 28. See Jiryis, supra n. 26, at 75 and Passim and the authorities cited there. 29. Nakkarah, Arab Land OwnershiP and Dispossession in Israel (forthcoming book). 30. Proclamation No. 1, dated May 24, 1948, in 3 ComPilation of Laws & Regulations Issued and in Force in the Hashemite Kingdom of Jordan until 1960 (hereinafter Complilation of Jordan's Laws and Regulations), at 13 (in Arabic, 1961). 31. Id. at 599. Althought this Law was issued in 1935, it was not put into effect until August 29, 1939. See, Id. at 607. 32. Id. at 606. 33. Order No. 2, Id. at 14. 34. Law No. 48 of 1949 concerning The Amendment to the Law of Public Administra- tion in Palestine. This Law was issued on December 1, 1949, but it came into effect on October 1, 1950. Id. at 9. 35. Text of the Resolution in 1 ComPilation of Jordan's Laws and Regulations, at 4.

  • 36. It should be noted that the name of the "Hashemite Kingdom of Jordan" did not come into existence as a result of the unity between both Banks of the Jordan River as it is generally understood. This name was officially adopted by the Legislative Council of Jordan on May 25, 1946, which is still Jordan's Independence Day. Id., 3. 37. Text in 3 Compilation of Jordan's Laws and Regulations, at 12. 38. 1 Compilation of Jordan's Laws and Regulations, at 112. , 39. By virtue of Order No. 153/1948 dated May 26, 1948, issued by Egypt's Minister of National Defence an Administrative Governor for the Gaza area was nominated and charged with certain responsibilities. The text of this Order is not available. However it was relied upon by the Administrative Governor in exercising his authority. See AI-Waqai' AI-Filisteniyya, No. 1 December 31, 1949, at 3. AI-Waqai' Al-Filisteniyya [hereinafter the "Official Gazette (Gaza)"] was the Arabic version of the Official Gazette of Palestine during the Mandate. It continued to be the Official Gazette of the West Bank till 1949 and of the Gaza Strip from December 31, 1949, until June 1, 1967. 40. In 1955, this name was changed by the Egyptian Administration into the "Gaza Strip".

  • 41. Text in the Official Gazette (Gaza) No. 1, December 31, 1949, at 9. 42. Text in the Official Gazette (Gaza) No. 11, Supp. 3, September 15, 1952, at 429. 43. Text in the Official Gazette (Gaza) Special Issue, February 25, 1958, at 304. 44. Text in the Official Gazette (Gaza) Extraordinary Issue, March 29, 1962.

  • 45. 1 Proclamations, Orders and Appointments of the Israeli Defence Forces in the West Bank Area, (hereinafter POA-WB), August 11, 1967, at 5. There is another set of similar orders for the Gaza Strip (hereinafter cited as POA-GS). These are official publications of Israel's military administration in all occupied territories. They appear only in Arabic and Hebrew. See infra Law Reports - Legislation, p. 175. 46. 8 POA-WB, October 29, 1967, at 303. 47. See Article 35 of Order No. 3 issued on June 10, 1967, 1 POA-GS, September 14, 1967, at 21 and Amendment No. 8 cancelling that Article 35 in Order No. 107 issued on October 11, 196i in POA-GS, February 8, 1968, at 337. 48. Shamgar, 1 Israel Yearbook on Human Rights at 262, 263 (1971). 49. 1 POA-WB, August 11, 1967, at 3. An identical Order No. 2 was issued on June 8, 1967, in Gaza Strip. See 1 POA-GS, September 14, 1967, at 5. 50. The ensuing text is mainly based on the excellent legal study of Shehadeh & Kuttab, The West Bank and the Rule ofLaw, 15-50 and the authorities cited therein (1980).

  • 51. See Military Order No. 39 of July 16,1967, 3 POA-WB, September 26,1967, at 86. This Order was subsequently replaced by Military Order No. 412 of October 5, 1970, 25 POA-WB March 1, 1971, at 954. For Gaza Strip, see Military Order No. 61, 3 POA-GS, December 31, 1967, at 187. 52. Art. 2 of Military Order No. 412, Id. 53. The first Israeli law affecting the legal status of Jerusalem after its occupation in June 1967 was the Law and Administrative Ordinance (Amendment No. 11) Law, 21 LSI at 75 (1967). See also Municipalities Ordinance (Amendment No. 6) Law, id. ; Protection of Holy Places Law, id., at 76. Jerusalem was declared by Israel as its capital on July 30,1980. See 34 LSI at 209 (1980). For an objective and comprehen- sive legal analysis of the issue of Jerusalem see K6chier, ed., The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem, Section III (1981). 54. See notes 55 - 57. 55. 21 POA-WB, April 22, 1970, at 733. 56. 9 POA-WB, January 22, 1968, at 350. The corresponding Order in Gaza Strip is Order No. 123 in 6 POA-GS, March 20, 1968, at 399.

  • 57. This Order, as is usually the case, was first issued in the form of mimeographed sheets and it was dated March 1, 1981. When it was printed and published in 48 POA-WB of June 30, 1982, at 865, it carried the date March 1, 1980, as its date of issue. The correct date is the former as the Order is called "Order Concerning the Administration of Local Councils (Judea and Samaria) (Order No. 892) of 1981." " The printed form does not include the 152-article Charter or the list of the settle- ments that are subject to this Order. 58. 55 POA-WB, May 5 1983, at 58. This citation refers to the Hebrew text of the Order as it was not, contrary to the general practice, published in Arabic. 59. Tomeh, Legal Status of Arab Refugees, I 10 Law & Contemporary Problems (Win- ter, 1968); Van Dusen, Jerusalem, the Occupied Territories, and the Refugees in Major Middle Eastern Problems in International Law, 37, 54 and passim (Khadduri, ed., 1972); Buehrig, The UN and the Palestinian Refugees (1971). See also on the issue of Palestinian refugees, The Report[s] of the Commissioner - General of UNRWA that have been submitted to the U.N. General Assembly every year.

  • 60. For Iraq, see Decree No. 366 dated August 17, 1969, published in the Official Gazette (Iraq) No. 1772 of August 28, 1969; Instructions concerning Civil Service No. 61 of 1969 published in the Official Gazette (Iraq) No. 1698 of February 25, 1969; Decree No. 991 published in the Iraqi Compilation of Laws, Regulations and Proclamations Part II, at 290, ( 1971); and Law No. 215 of 1980 concerning the right of Palestinians residing in Iraq to own real property, published in the Official Gazette (Iraq) No. 2813 of January 19, 1981. For Syria, see Law N6. 260 of July 10, 1956, which is still in force. 61. Resolution 1547, Sess. 31, Sched. 3 (March 9, 1959). 62. In all relevant legislation or regulations issued by the Lebanese authorities there was no exception made with respect to the Palestinian refugees living in Lebanon. See, for example the Law of Entry, Residence and Departure of Aliens of July 10, 1962, which defines an alien as any person not holding Lebanese nationality. No special exemption was made to deal with the status of the Palestinian refugees. Decree No. 17561 of September 18, 1964, concerning the regulation of foreign labour, likewise did not provide for special provisions to deal with the Palestinian refugees' situation. Accordingly, those Palestinians were treated as foreigners in Lebanon. 63. See the Legal Opinion issued by the Legislative and Advisory Bureau of the Lebanese Ministry of Justice No. 117/R dated March 26, 1966. In that Opinion, it was held that since it is an established principle of international law that a refugee living in a foreign country remains a foreigner, and whereas the Palestinian authori- ties did not, prior to 1948, incorporate in legislation the principle of reciprocity with respect to Lebanese nationals, Palestinian refugees in Lebanon "could not legally be equal to Lebanese nationals" in terms of benefiting from family compensation. See also the Labour Tribunal Decree No. 143 dated February 15,1973 in Ghanim & Abu Nadir ed., Compilation of Opinions of the Labour Arbitration Tribunals in Lebanon for 1973 (in Arabic).

  • 64. The unofficial text was published in Al-Nahar newspaper (Beirut), April 20, 1970. 65. Ministerial Decree No. 289/ published in AI-Safir newspaper (Beirut), December 18, 1982; See also the draft bill submitted by the same Ministry concerning the regulation of labour inclucing "foreign" labour, Al-Safir, January 3, 1984. 66. Kassim, The Palestine Liberation Organization's Claim to Status: A Juridical Analy- sis Under International Law, 9 Den. J. Int'l. L. & Pol'y 1 (1980). For a Zionist view on the status of the PLO, see Levine, A Landmark on the Road to Legal Chaos: Recognition of the PLO as a Menace to World Public Order, 10 Den. J. Int'l. L. & Pol'y 259 (1981). 67. Kassim, Supra note 66, at 25 and the authorities cited therein. 68. Id. at 24. 69. Id at 24-25.

  • 70. Id. at 27.

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