حملة دولية لانشاء محكمة خاصة لمحاكمة مجرمي الحرب

حملة دولية لانشاء محكمة خاصة لمحاكمة مجرمي الحرب الاسرائيليين

صرح الدكتور أنيس مصطفى القاسم ، الامين العام للمنظمة الدولية للقضاء على جميع أشكال التمييز العنصري (ايفورد)، أن المنظمة تقوم بحملة دولية عن طريق الانترنت لانشاء محكمة خاصة لمحاكمة مجرمي الحرب الاسرائيليين على غرار المحكمة الخاصة التي أنشئت لمحاكمة مجرمي الحرب في يوغوسلافيا السابقة ورواندا. والحملة موجهة لرئيس الجمعية العامة للامم المتحدة ولاعضاء الامم المتحدة لتتخذ الجمعية العامة قرارا بانشاء هذه المحكمة استنادا الى اختصاصها بموجب ميثاق الامم المتحدة ولأن الجمعية العامة هي المسئولة أصلا عن القضية الفلسطينية، كما قررت ذلك محكمة العدل الدولية في فتواها الخاصة بالجدار العنصري الذي تقيمه اسرائيل في الاراضي الفلسطينية المحتلة. وقد استشهدت المنظمة بالقرار الذي اتخذه مجلس حقوق الانسان في يناير الماضي والذي أدان الجرائم التي ارتكبتها اسرائيل مؤخرا في قطاع غزة المحتل وقرر تشكيل لجنة دولية محايدة لتقصي الحقائق في هذا الشأن. وقد وقع على الطلب حتى الآن حوالي ثمانية وعشرين ألفا من مختلف أنحاء العالم، والعدد ما زال في الارتفاع بشكل يومي، مع أنه لم يمض على بدء الحملة سوى أيام. وايفورد ،المنظمة التي تتبنت هذه الحملة، منظمة غير حكومية تتمتع بالصفة الاستشارية لدى للامم المتحدة، ونالت جائزة الامين العام للامم المتحدة كرسول للسلام. ويمكن الاطلاع على العريضة والتوقيع عليها لمن يشاء على الموقع التالي:

http://www.petitiononline.com/EAFORD09/petition.html وعلى موقع (ايفورد) http://www.eaford.org .

وهذه الحملة لا تنتقص من الجهود المبذولة أمام محكمة الجنايات الدولية وأمام المحاكم الوطنية لمحاكمة مجرمي الحرب هؤلاء، وهي جهود تؤيدها أيفورد، بل هي دعم لهذه الجهود واحتياط لما قد يواجه هذه المحاولات من صعاب. واستنادا الى اتصالات أجراها مؤيدو هذه الحملة فقد تبنتها بعض الدول في الجمعية العامة وهي محل بحث في أوساط المنظمة الدولية.

Abbas challenged over new cabinet

UPDATED ON:
Sunday, July 08, 2007
18:10 Mecca time, 15:10 GMT
AlJazeera.net
News Middle East

Abbas challenged over new cabinet

Abbas swore in the new cabinet after dismissing the Hamas-led Palestinian unity government [AFP]

Senior lawyers who wrote the interim Palestinian constitution have said Mahmoud Abbas, the president, exceeded his powers when he appointed the new emergency cabinet.

Abbas replaced the unity government, led by Hamas’s Ismail Haniya, after the rival faction pushed security forces loyal to the president out of the Gaza Strip.
Anis al-Qasem and Eugene Cotran, who began drafting the Basic Law more than a decade ago, said it gave Abbas the power to dismiss Haniya but did not allow him to appoint a new government without parliamentary approval.
It is also does not permit him to suspend articles of the Basic Law, as he did last month to spare Salam Fayyad, the new prime minister, the need to win a vote in parliament, they told Reuters news agency.

Abbas’s office had no immediate comment on the lawyers’ remark but a spokesman for his Fatah party said at the weekend that the president’s word was law as long as Hamas had paralysed parliament.

‘Mutiny’

Jamal Nazzal, Fatah spokesman, was quoted on Palestine Radio saying the Basic Law does not limit how often the president can declare a state of emergency, so it can be extended “as long as the mutiny which brought that situation about continues.”

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Azmi Shuaibi, who sat on a parliamentary committee on the Basic Law, defended Abbas’s power to suspend articles.

He said Article 113, which stipulates that the legislature “shall not be dissolved or suspended during the emergency situation, nor shall the provisions of this chapter be suspended,” meant he “can suspend articles in other chapters”.

Al-Qasem disagreed, cautioning against making “such wild implication … particularly where the implication could easily lead to dictatorship – the system that the Basic Law was intended, in all its provisions, to guard against”.

“They are obviously looking for the slimmest argument to build a mountain on and dry the ocean. They are destroying the foundation on which the Basic Law is laid,” he told Reuters.

Al-Qasem and Cotran said the Basic Law further says that Haniya’s unity cabinet should remain the caretaker administration until Abbas secured parliamentary approval for a new government.

Emergency

“What is clear is that … the Haniya government, doesn’t fall during the period of an emergency,” Cotran told Reuters.

The Basic Law has no specific provisions for an “emergency” government, Al-Qasem added.

Al-Qasem and Cotran made their comments in a series of telephone and email exchanges with the Reuters news agency over the past week.

Ahmad Elkhaldi, a law professor who worked on drafts of the Basic Law, said he was concerned Palestinian democracy was “in retreat”.

A political independent who angered some in Fatah by serving as justice minister in Haniya’s first cabinet, Elkhaldi was briefly abducted by armed men loyal to Fatah last month.

“They wanted to send me a message that ‘you have to stop speaking about who is right and who is wrong’,” Elkhaldi said at Nablus’s al-Najah University.

“We have to work inside the restrictions of the Basic Law, not put the Basic Law aside and do whatever we want.”
Source: Agencies

Source URL: http://english.aljazeera.net/news/middleeast/2007/07/2008525134750508490.html
AlJazeera.net

Israel pledges to free 250 jailed Palestinians

By Isabel Kershner
International Herald Tribune

Sunday, July 8, 2007
JERUSALEM: Israel announced Sunday that it would release 250 Palestinian prisoners, a move intended to bolster the administration of President Mahmoud Abbas, a government spokesman said.

Israeli and Palestinian officials also said that discussions were under way for a meeting between Abbas and Ehud Olmert, the Israeli prime minister, possibly early next week, although the date and location had not been finalized.

Olmert had pledged to release prisoners belonging to Abbas’s Fatah faction at a summit meeting in the Egyptian resort of Sharm el Sheik on June 25. David Baker, a government spokesman, said the gesture was meant to “shore up” the Palestinian leader and his new emergency government, which rules from the West Bank, after the takeover of Gaza by Fatah’s rival, Hamas.

But a political adviser to Abbas, Nimr Hamad, said that the release of 250 prisoners was “a very, very limited step” and that Israel had rejected a Palestinian request to coordinate on which prisoners should be released.

Palestinian officials said about 10,500 Palestinians were being held in Israeli prisons, about half of whom have been charged. According to the Israeli prisons authority, there are about 10,000 Palestinian prisoners suspected of, or charged with, security offenses in the prisons. About 60 percent of them belong to Fatah, 30 percent to Hamas and 10 percent to other factions, a prisons authority spokesman said.

Israel released 500 Palestinian prisoners in February 2005, soon after Abbas was elected.

Other “goodwill gestures” offered to Abbas at Sharm el Sheik included a resumption of the transfer of Palestinian tax revenues that Israel collects on the Palestinians’ behalf, and that Israel has been withholding since Hamas came to power in early 2006; and a pledge to hold regular meetings between Olmert and Abbas. More than $100 million in tax money was transferred to the Palestinians last week.

Israeli government officials said that the list of prisoners to be released was “still being worked on,” but was nearly finalized. The first list presented by the Israeli security services was sent back for revision, according to Israeli media reports, because some of the candidates were very close to ending their prison terms anyway.

In line with a longstanding Israeli policy, Olmert said he would not release prisoners “with blood on their hands,” a reference to those who have been directly involved in terrorist attacks that killed Israelis.

Hamad said that he would like to see sick prisoners and women among those released, but that the Israelis were deciding unilaterally.

The early release of Palestinian security prisoners always arouses opposition in Israel. The cabinet approved the release by a majority of 18, with six voting against, Baker said. A seventh, Avigdor Lieberman of the rightist Yisrael Beitenu party, objected to the release in absentia.

Among those who voted against was Shaul Mofaz, a former defense minister who is now minister of transportation and a member of Olmert’s Kadima party. Mofaz said on Army Radio that he believed that in the end the Palestinian president would take the money and the prisoners and then join forces again with Hamas in a new unity government.

In the meantime, Palestinian lawyers who were involved in drafting the Palestinian Basic Law, or interim constitution, are disputing the legality of Abbas’s emergency government, Reuters reported.

Anis al-Qasem, who oversaw the writing of the Basic Law, and a fellow independent Palestinian constitutional lawyer, Eugene Cotran, told Reuters that Abbas had the power to dismiss Ismail Haniya, the sacked prime minister of the previous Hamas-led unity government.

But they said the law did not grant Abbas the power to appoint a new government without legislative approval nor the right to suspend articles of the Basic Law pertaining to the need for parliamentary approval, as he did last month.

——————————————————————————–
Notes:
International Herald Tribune
Source URL: http://www.iht.com/articles/2007/07/08/news/mideast.php
Copyright © 2008 The International Herald Tribune | http://www.iht.com

Reuters Jerusalem

Mr. al-Qasem,

Here are both of the stories that we just moved on the wire. I want to thank you for the help and I apologise that I was unable to get everything into the stories. (Reuters has a few rules on length that I couldn’t get around.) Please let me know what you think. I hope you feel this was done with properly and that your comments are presented fairly.

Cheers,
Adam Entous
Reuters
972 544 240 968

16:24 08Jul07 RTRS-TEXT-Opinion of lawyer who drafted Palestinian law July 8 (Reuters) – Anis al-Qasem, who led the drafting of the Palestinian interim constitution, disputed President Mahmoud Abbas’s legal authority to install a government last month that removed Hamas from power without parliamentary approval.

Below is the text of his reply to questions from Reuters:

“It is clear from (Basic Law) Article 45 that the president has the power to dismiss the prime minister. However, under Article 78(3), the dismissed government continues to run the affairs of government temporarily as a caretaker government until the formation of the new government in the manner provided by the Basic Law.

“Under Article 79(4) of Chapter 5 (on executive authority), neither the prime minister nor any minister shall assume his office except after a vote of confidence from the Legislative
Council (parliament).

“Conclusion: The president has the power to dismiss the prime minister and to start the process of the formation of a new government. The basic ingredients of this process that give legitimacy to the new government are a vote of confidence by the Legislative Council and the oath of office.

“Until the formation of the new government in accordance with the procedure laid down in Chapter 5 of the Basic Law, the dismissed government continues to act as a caretaker government. The Basic Law contains no special provisions for what is sometimes called ’emergency government’.”

“As to the powers of the president in a state of emergency, the only power specifically given to him is to declare the state of emergency in the manner provided in Article 110. He cannot issue decrees suspending any provisions of the Basic Law.

“The Legislative Council continues to function (Article 113), and none of the other provisions of the Basic Law may be touched except as provided in Article 111, which deals only with restrictions that may be imposed on basic rights and freedoms, and even these may only be affected to the extent necessary to fulfill the objective of the emergency as stated in the emergency decree.

“It is worth remembering that the whole Basic Law has been amended to reduce, rather than increase, the powers of the president as a result of the power struggle between Mr Abbas when he was Prime Minister and the late President Arafat.

“Of course we anticipated that, in a system where both the president and the legislature come to power through popular elections, there is the likelihood that the president may belong to one political party while the majority in the legislature may belong to another, with the possibility of divergence of policies, as it has happened frequently in emocracies like the United States and France.

“In a situation like this, compromises through dialogue are struck and neither the resident nor the legislature would attempt to thwart the will of the people. If a deadlock is reached, the president may exercise the power given to him by the Basic Law and dismiss the government and appoint a new government that would, ultimately, receive the approval of the Legislative Council. Through this requirement of approval the elected representatives will determine the propriety or otherwise of the action of the president and the will of the electorate will not be thwarted. That was the expectation.”
“What we had not anticipated is the reaction of ‘democratic’ governments to the free exercise of the Palestinian people of their democratic right to change the government, a government whose corruption and lawlessness, which Palestinians considered a stain on their culture and reputation, have been the talk of the international community…
“No constitutional draftsman would anticipate such a situation when his aim is to provide a basic law anchored in democratic principles and the rule of law.”

((Editing by Alastair Macdonald and Mary Gabriel;
adam.entous@reuters.com))
Keywords: PALESTINIANS LAW/TEXT
Sunday, 08 July 2007 16:24:11
RTRS [nL0880166] {EN}
ENDS

16:16 08Jul07 RTRS-EXCLUSIVE-Framers of Palestinian constitution challenge Abbas
By Adam Entous
NABLUS, West Bank, July 8 (Reuters) – The senior lawyers who wrote the interim Palestinian constitution say President Mahmoud Abbas exceeded his powers in appointing an emergency government to replace a Hamas-led cabinet without parliamentary approval. The Palestinian constitutional lawyer who led the framing of
the Basic Law accused some political leaders of “destroying” its foundation and expressed dismay at how Western powers responded to the free election of a Hamas government headed by Prime Minister Ismail Haniyeh by imposing a crippling boycott.
Abbas’s office had no immediate comment. A spokesman for his Fatah party said at the weekend, however, that the president’s word was law as long as Hamas’s “mutiny” paralysed parliament.
Washington, which imposed the boycott when Haniyeh took office in March 2006, embraced as “legitimate” the cabinet Abbas appointed after Hamas routed his Fatah forces in the Gaza Strip on June 14. The European Union also “emphatically” backed
Abbas’s actions as “in keeping with the Palestinian Basic Law”.
In their first public comments since Abbas formed a new government, Anis al-Qasem, who oversaw the writing of the Basic Law, and fellow independent Palestinian constitutional lawyer Eugene Cotran said the document whose drafting they began more
than a decade ago gave Abbas the power to dismiss Haniyeh.
But, they said, it did not grant him the power to appoint a new government without legislative approval nor the right to suspend articles of the Basic Law, as he did last month to spare new premier Salam Fayyad the need to win a vote in parliament.
Appointed by Yasser Arafat, al-Qasem said the president’s powers were “intentionally and explicitly very restricted”.

PRESIDENT’S DEFENCE

However, Azmi Shuaibi, who sat on a parliamentary committee on the Basic Law, defended Abbas’s power to suspend articles. He said Article 113, which stipulates that the legislature “shall not be dissolved or suspended during the emergency situation, nor shall the provisions of this chapter be suspended,” meant he “can suspend articles in other chapters”.
Al-Qasem disagreed, cautioning against making “such wild implication … particularly where the implication could easily lead to dictatorship — the system that the Basic Law was intended, in all its provisions, to guard against”.
“They are obviously looking for the slimmest argument to build a mountain on and dry the ocean. They are destroying the foundation on which the Basic Law is laid,” he told Reuters.
Al-Qasem and Cotran said the Basic Law further prescribes that Haniyeh’s dismissed unity cabinet, which included Abbas’s secular Fatah faction, remain the caretaker administration until Abbas secured parliamentary approval for a new government.
“What is clear is that … the Haniyeh government, doesn’t fall during the period of an emergency,” Cotran told Reuters.
Al-Qasem said that under Article 78 “the dismissed government would continue to run the affairs of government temporarily as a caretaker government until the formation of the new government in the manner provided by the Basic Law.”
He noted Article 79 stipulates “neither the prime minister nor any minister shall assume his office except after a vote of confidence” from the legislature. The Basic Law has no specific provisions for an “emergency” government, he added.
The law says a presidential emergency decree lasts 30 days, extendable with parliamentary approval. But Cotran said: “That doesn’t mean that he can form a new government. … Ruling by decree doesn’t mean he can suspend or change the constitution.”
Al-Qasem and Cotran made the comments in a series of telephone and email exchanges over the past week. Al-Qasem was in Spain; Cotran in Britain.
Fatah spokesman Jamal Nazzal was quoted on Palestine Radio saying the Basic Law does not limit how often the president can declare a state of emergency, so it can be extended “as long as the mutiny which brought that situation about continues.”

PARLIAMENT
It is unclear what role, if any, the legislature can play — over the past year, Israel has arrested nearly half of Hamas’s parliamentary majority bloc, making it virtually impossible for the body to reach a quorum to hold a vote.

Despite the problems forming a quorum, Cotran said Abbas still needs parliamentary approval. Ultimately, he said, the Palestinian constitutional court would have to decide.
That, however, appears unlikely any time soon as the constitutional court is also not functioning.

Law professor Ahmad Elkhaldi, who worked on drafts of the Basic Law, said he was concerned Palestinian democracy, long touted as a goal by Washington, was “in retreat”.
A political independent who angered some in Fatah by serving as justice minister in Haniyeh’s first cabinet, Elkhaldi was briefly abducted by masked gunmen loyal to Fatah last month.

“They wanted to send me a message that ‘you have to stop speaking about who is right and who is wrong’,” Elkhaldi told Reuters, with a much-thumbed copy of the Basic Law lying beside him on his desk at Nablus’s al-Najah University.

“We have to work inside the restrictions of the Basic Law, not put the Basic Law aside and do whatever we want.”

In Washington, Nathan Brown, a professor who has advised the Palestinians and the Iraqis on new constitutions, said: “These are absolutely and clearly black and white violations. He has no authority whatsoever to appoint an emergency government.”
For al-Qasem, the lawyers’ work has been thwarted by the politics of punishing Hamas for refusing to give up violence:

“The Palestinians were immediately rewarded by the ‘democracies’ of the world with an unprecedented crippling siege as a punishment for the exercise of their democratic right.
No constitutional draftsman would anticipate such a situation.”

(Additional reporting by Atef Sa’ad in Nablus)
((Editing by Alastair Macdonald and Mary Gabriel;
adam.entous@reuters.com))
Keywords: PALESTINIANS LAW/

Reuters Jerusalem

To: Mr. Adam Entous
Reuters Jerusalem

I refer to your fax and e-mail of 4th July and your telephone call on the same day.

Before answering your questions, it may be helpful, while interpreting the Basic Law, as amended, to keep two matters in mind as the main objects of such amendments, which came about as a result of the struggle for power between the late Abu Ammar and his Prime Minister Abu Mazin. These objects were: (1) severe reduction of the powers of the president in favour of the government, and (2) transfer of the powers of the president over security to the government. These two objectives have been achieved in the amendments. Moreover, the original basic law was careful to apply the concept of separation of powers so that the president was not empowered, for example, to dissolve the Legislative Council, and the Legislative Council was not empowered to unseat the president.

As to your questions:

1 – References to the Basic Law are references to it as it has been amended.

2 – Under Article 45 of the Basic Law, the President is given the power to dismiss the Prime Minister.

3- Under Article 83(6) the government is deemed as having resigned and shall be reformed in accordance with the provisions of this chapter in the following cases:
……………..
(6) dismissal of the prime minister by the president of the national authority.

The chapter referred to in the opening paragraph of this Article 83 is Chapter Five – entitled “The Executive Authority”, starting with Article 63 and ending with Article 96.

4 – It is clear from Article 45 that the President has the power to dismiss the prime minister. However, under Article 78(3), the dismissed government continues to run the affairs of government temporarily as a caretaker government until the formation of the new government.

5 – The new government, as provided in Article 83(6), has to be formed in accordance with the provisions of Chapter Five. This is a general provision governing, inter alia, the specific situation when the prime minister is dismissed. Thus, in the event of dismissal, the formation of the new government must comply with the provisions of chapter five.

6 – Under Article 79(4) of chapter five neither the prime minister nor any minister shall assume his office except after a vote of confidence in from the Legislative Council. Again, this is a general provision applicable to any prime minister or minister.

7 – Under Article 66 of chapter five, the prime minister, once he has chosen his ministers, should request the Legislative Council to hold a special meeting for a vote of confidence in the government, and this meeting is to be held within a maximum of one week from the date of request. After the government obtains this vote of confidence and before it commences its activities, the prime minister and ministers take the oath. Article 79(4), as stated above, prohibits assumption of office before the vote of confidence of the elected representatives of the people. This is a basic rule of democratic government in the parliamentary system adopted by the Basic Law, whatever that government may be called. Otherwise, the door would become open to presidential dictatorship.

Conclusion: The President has the power to dismiss the prime minister and to start the process of the formation of a new government. The basic ingredients of this process that give legitimacy to the new government are a vote of confidence by the Legislative Council and the oath of office. Until the formation of the new government in accordance with the procedure laid down in chapter five, the dismissed government continues to act as a caretaker government. The Basic Law contains no specific provisions for what is sometimes called “emergency government”. Chapter Seven is concerned with states of emergency; and it is not always necessary to appoint a new government, although it is not unconstitutional to do so, provided such government is installed in the manner stated above.

8 – As to the powers of the President in a state of emergency, the only power specifically given to him is to declare the state of emergency in the manner provided in Article 110. He cannot issue decrees suspending any provisions of the Basic Law. The Legislative Council continues to function (Article 113), and the other provisions of the Basic Law may not be touched except as provided in Article 111, which deals only with restrictions that may be imposed on basic rights and freedoms, and even these may only be affected to the extent necessary to fulfill the objective stated in the emergency decree. It is worth remembering that the whole Basic Law has been amended to reduce, rather than increase, the powers of the President.

9 – You ask whether we had anticipated a situation like the present. Of course we anticipated that, in a system where both the president and the legislature come to power through popular elections, there is the likelihood that the president may belong to one political party while the majority in the legislature may belong to another, with the possibility of divergence of policies. This happens in any democracy with a presidential system of this type. It is presently so in USA and has frequently happened in other democracies like France. In a situation like this compromises are struck and neither the president nor the legislature would attempt to thwart the will of the people. Unfortunately, this did not happen in Palestine. While the transfer of power after the death of Abu Ammar went smoothly in compliance with the Basic Law, the same did not happen after the elections for the Legislative Council. Although Abu Mazin declared, immediately after the elections, that he would not deny the Hamas government what he had fought for while Prime Minister (i.e. that the security forces would be placed under the minister of the interior in compliance with his responsibility under the Basic Law), it seems that he was forced to renege, and the struggle for their control began. Even under the unity government, the minister of the interior was denied his constitutional right and was forced to resign, although he was neither from Hamas nor from Fatah, and was agreed upon by all concerned.

10 – What we had not anticipated is the reaction of “democratic” governments to the free exercise of the Palestinian people of their democratic right to change the government, a government whose corruption and lawlessness, which Palestinians considered a stain on their culture and reputation, have been the talk of the international community. To many the hollowness of the call for democracy in the Middle East became too transparent when the Palestinians were immediately rewarded by the “democracies” of the world with an unprecedented crippling siege as a punishment for the exercise of their democratic right as they have been called upon to do. The democratically elected government of Hamas was not even given a chance to govern and show its true colours in the position of responsibility, and many came to the conclusion that the aim of “democratizing” the Middle East was the production of subservient corrupt regimes. No constitutional draftsman would anticipate such a situation when his aim is to provide a basic law anchored in democratic principles and the rule of law. And this is the cause of the present situation. Faced with a choice between the certainty and actual reality of economic disaster as a result of the siege imposed by the “democracies” and abiding by the provisions of the Basic Law, Hamas and Abu Mazin made different choices. On the regional scale, advocates of democracy and the rule of law received a great shock. Disillusionment about all claims of democratizing the Middle East has set in and the hypocrisy of such claims could no longer be hidden under the cloak of spreading western “values”. The credibility of western governments, particularly of USA administration, has suffered a retreat that it will take a long time to recover from. This, I admit, I did not anticipate.

Dr Anis Al-Qasem
5th July 2007