B Explanatory
memorandum by Mr Kox, rapporteur
1 Introduction
1. In its
Resolution
1830 (2011), adopted on 4 October 2011, the Parliamentary Assembly
decided to grant partner for democracy status to the Palestinian
National Council. It stated that “progress in taking forward reforms
is the prime aim of the partnership for democracy and should constitute
the benchmark for assessing the efficiency of this partnership”
and it resolved “to review, no later than two years from the adoption
of this resolution, the state of progress achieved in implementing
the political commitments undertaken by the Palestinian National
Council, as well as in carrying forward the specific issues mentioned
in paragraph 12” of
Resolution
1830 (2011).
2. The Committee on Political Affairs and Democracy appointed
me rapporteur on 24 January 2012.
3. In order to prepare the present report, I paid a first fact-finding
visit to the Palestinian Territories from 15 to 18 July 2012 and
a second visit from 13 to 16 November 2013. In addition, I visited
the region from 6 to 9 April 2013 with our committee’s Sub-Committee
on the Middle East.
4. In the meantime, the request that Palestine be granted non-member
State status was accepted by the United Nations General Assembly
in November 2012 and, as a consequence, the Parliamentary Assembly
of the Council of Europe decided to use the name “Palestine” in
the Assembly list and related documents.
5. As developments were expected in the second half of 2013 (re-launching
of the peace process, reconciliation between Fatah and Hamas and
local elections), the committee accepted my proposal to postpone
the debate on the evaluation of the partner for democracy status
with the Palestinian National Council to January 2014. Unfortunately,
the expectations on the peace process and on reconciliation have
not yet been fulfilled.
2 The criteria
6. The Assembly had stressed the importance of free
and fair elections as a cornerstone of genuine democracy and had
expressed its expectation to be invited to observe parliamentary
elections in the Palestinian Territories as from the next general
elections, which had been announced to take place before June 2012.
7. The Palestinian National Council (PNC) committed itself to
the same values as those of the Council of Europe, namely pluralist
and gender parity-based democracy, the rule of law, and respect
for human rights and fundamental freedoms, and committed itself
in particular to:
- continuing
its efforts to raise the awareness of the public authorities and
the main players in politics and civil society of the need to make
progress in the discussion of issues relating to the abolition of
the death penalty and to encourage the authorities concerned to
maintain the de facto moratorium
on executions that is in place since 2005;
- making full use, in its institutional and legislative
work, of the experience of the Parliamentary Assembly, as well as
the expertise of the European Commission for Democracy through Law
(Venice Commission), bearing in mind that the Palestinian National
Authority has observer status with the Venice Commission;
- continuing its efforts to create favourable conditions
for holding free, fair and transparent elections in compliance with
relevant international standards;
- encouraging equal participation of women and men in public
life and politics;
- encouraging the competent authorities of the Palestinian
National Authority to accede to relevant Council of Europe conventions
and partial agreements that are open for signature and ratification
by non-member States, in particular those dealing with human rights,
the rule of law and democracy issues;
- informing the Assembly regularly on the state of progress
made in the implementation of the principles of the Council of Europe.
8. Furthermore, the Assembly considered that a number of specific
measures were of key importance for strengthening democracy, the
rule of law and the respect of human rights and fundamental freedoms
in the Palestinian Territories. It included their implementation
– in addition to the implementation of the commitments listed in
paragraph 4 – among the criteria against which the partner for democracy
status should be evaluated. These were:
- rapidly concluding the negotiations for the formation
of a government of national unity and setting universally acceptable
dates for the presidential, parliamentary and local elections;
- holding such elections in accordance with relevant international
standards throughout the Palestinian Territories;
- taking definite and significant steps in the direction
of the three pleas made by the Quartet: to refrain from violence;
to recognise the right of the State of Israel to exist; to abide
by all the agreements signed by the Palestinian representatives
in recent years;
- reforming the structure of the Palestinian National Council
so that it becomes, to the largest possible extent, a democratically
elected body;
- actively promoting equal opportunities for women and men
in political and public life; fighting all forms of discrimination
(in law and in practice) based on gender; ensuring effective equality
between women and men, including as regards marriage, divorce, polygamy
and inheritance law and, where necessary, initiating a process of
legislative revision; fighting all forms of gender-based violence;
- abolishing the death penalty set out in the Penal Code,
going beyond the de facto moratorium
on executions which has been established, at least in the West Bank,
since 2005;
- explicitly rejecting the use of terrorism and combating
it actively with measures respecting human rights and the rule of
law;
- freeing the soldier Gilad Shalit;
- ending all illegal smuggling of weapons into the Gaza
Strip and the West Bank;
- adhering to and effectively implementing relevant international
instruments in the field of human rights, including full co-operation
with United Nations special mechanisms and implementation of the
United Nations Universal Periodic Review recommendations;
- guaranteeing freedom and pluralism of the media;
- eradicating and preventing torture and inhuman or degrading
treatment of persons deprived of their liberty; fighting impunity
for crimes of torture and ill-treatment;
- improving conditions of detention, in line with the United
Nations prison-related norms and standards;
- fighting racism, xenophobia and all forms of discrimination;
- fighting corruption;
- strengthening local and regional democracy;
- ensuring full respect for freedom of conscience, of religion
and of belief, including the right to change one’s religion;
- guaranteeing and promoting freedom of association and
of peaceful assembly.
9. A partnership implies responsibilities for both partners and
the present evaluation should also consider how the Council of Europe,
and in particular the Parliamentary Assembly, performed with respect
to its own responsibilities.
10. For instance, the Assembly had hoped that granting partner
for democracy status to the Palestinian National Council would contribute
to intensifying co-operation between the Palestinians and the Council
of Europe and promoting Palestine’s accession in due course to Council
of Europe conventions. It had therefore encouraged the Secretary
General of the Council of Europe, in co-ordination, as appropriate,
with the European Union, to mobilise the Organisation’s expertise,
including that of the Venice Commission, with a view to contributing
to the full implementation of democratic reforms in the Palestinian
Territories.
3 The findings
11. On my first visit, I met the Minister of Justice
and the Minister of Women’s Affairs, the Chief Justice, the Chief
of the Anti-Corruption Commission and the General Commissioner of
the Independent Commission for Human Rights. I also held talks with
members of the Palestinian partner for democracy delegation, with representatives
of the political parties and with a member of the Palestine Liberation
Organisation (PLO) Executive Committee.
12. I also met one of the working groups of the Palestinian Legislative
Council (PLC) in Ramallah. These working groups have been created
to guarantee that at least some tasks of the PLC are dealt with,
in spite of the fact that the PLC, as such, cannot operate due to
the impossibility for PLC members from Gaza to participate. The
working groups, which are open to PLC members of all factions, have
to examine and to comment on presidential proposals and to discuss
actual developments. They meet with ministers and with official
institutions, such as the Supreme Judicial Council, the Human Rights
Commission and the Anti-Corruption Commission.
13. Furthermore, I met representatives from women’s, civil society,
human rights and prisoners’ organisations and of the Palestinian
Central Elections Commission. Finally, I made working visits to
Bethlehem and to Nablus.
14. With the Sub-Committee on the Middle East, I met President
Abbas, Chief negotiator Saeb Erekat, members of the Palestinian
partner for democracy delegation, the Director of the Central Electoral
Commission (CEC), former Prime Minister and former negotiator Ahmad
Qurei, the Minister of detainees and ex-detainees affairs and prisoners
associations, human rights organisations and the media. Afterwards,
I met once again one of the PLC working groups and the president
of the CEC. I had a fruitful discussion with secondary school students
on their future and visited the Bir Zeit University where student
elections were taking place, in which Fatah and Hamas candidates
played major roles.
15. With the sub-committee, I visited the Am’ari refugee camp
in Ramallah, the separation wall in Bethlehem and the Old City of
Jerusalem. Afterwards, I made a working visit to Jericho near the
Dead Sea.
16. On my second visit, I met President Abbas, Prime Minister
Hamdallah, the Ministers of the Interior, Justice, Prisoners’ Affairs,
Women’s Affairs and Agriculture, the Chief Justice, the Palestinian
Human Rights Commissioner, the Chief negotiator, the Heads of the
CEC, the Anti-Corruption Commission, the National Audit Bureau and
members of all factions in the PNC. I also met with the Palestinian
Youth Parliament, representatives of civil society, human rights
organisations and the Palestinian media. In Jerusalem I was briefed
by the office of the UN High Commissioner for Human Rights.
17. The Palestinian authorities, and in particular the Palestinian
partner for democracy delegation, were very effective and professional
in organising the meeting of the Sub-Committee on the Middle East
and both of my fact-finding visits to the area.
18. To all my interlocutors, I explained the objective of my visits
and asked questions related to the Palestinian expectations about
the status and the compliance with the commitments. I also expressed
concern about the lack of checks and balances, due to the current
absence of an effective legislative power, which was the cause of
a severe imbalance in the Palestinian State structures.
19. All those whom I met insisted on the difficulties resulting
from the Israeli occupation, aggravated by the split with Gaza.
However, while in 2011 almost all were optimistic about the end
of the split, in 2012 and in particular in 2013, the hope for a
quick solution was fading away. The “international community” –
mainly the United States, but also, although to a lesser extent,
Europe – was criticised for not pressing Israel into complying with
its obligations.
20. Our interlocutors were less optimistic that the ongoing changes
in the Arab World would have positive consequences on the Israeli-Palestinian
conflict. On the contrary, the situation in Egypt was “not helping”
the reconciliation process, in the words of President Abbas in November
2013. Reconciliation seemed to be his number one priority.
21. President Abbas praised European support for statehood-building
in Palestine. He asked Europe to be “not only a major payer but
also a major player” in the development of Palestinian institutions
and in helping to resolve the Israeli-Palestinian conflict. The
President praised the decision of the European Union to begin, from 2014,
labelling products which come from Israeli settlements in the occupied
Palestinian territories. According to the President, this had nothing
to do with a boycott of Israeli products, but was a measure in line
with Europe’s position on the illegality of those settlements.
22. Prime Minister Hamdallah expressed gratitude to Europe, which
was the largest contributor to Palestine. The main obstacle to economic
development was the Israeli occupation. The lack of reconciliation
with Gaza, and the ensuing failure to hold elections were standing
in the way of fully fledged democracy.
23. The Head of the Anti-Corruption Commission spoke about fighting
corruption, which was based on a modern law unequalled in the Arab
world. The Commission was completely independent and perceived as such
by the public. A special anti-corruption court was also in place.
The efforts of the Commission, together with the activity of the
State Audit and Administrative Control Bureau, were being effective
in fighting corruption. This nevertheless remained a problem.
24. The Minister of Justice and the Chief of the Supreme Judicial
Council explained how the Israeli occupation and the split with
Gaza prevented the full implementation of the rule of law and the
functioning of the judicial system. In the West Bank, the main problems
were the lack of co-operation from the Israeli authorities and a
shortage of resources, which led to unacceptably lengthy processes.
In the Gaza Strip, the de facto authorities
were responsible for the judicial system, which was politicised
and not independent. The difference of access to areas A, B and
C distorted the implementation of the rule of law. Courts in the
West Bank were, however, more independent than in any other Arab
State.
25. The moratorium on capital punishment, one of the obligations
the PNC took upon itself when signing the partnership with the Assembly,
is fully respected in the West Bank whereas courts in Gaza continue
to hand down death penalty sentences and Hamas authorities continue
to carry out illegal executions. While we were in Ramallah in 2012,
we were informed of three executions carried out by Hamas on 17
July in Gaza. In this respect, I issued a press release strongly
condemning the executions.
26. The Minister of Justice underlined the independence of the
prosecution. Gender balance among judges, prosecutors and lawyers
would improve as there were more female than male students. The
increase in drug smuggling was a serious problem. The situation
in prisons had improved and was acceptable. Detention centres for
minors still needed to be developed. The Minister valued Palestinian
co-operation with the Venice Commission and was interested in contacts
with the Council of Europe European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT).
There was a training programme for lawyers in co-operation with
the European Union but more international support was needed.
27. The Minister of the Interior explained that the aim of the
Palestinian Government was to develop State structures in accordance
with the best international standards. In this context, it was ready
to adhere to the relevant Council of Europe conventions. The member
States of the Council of Europe should, however, agree on inviting
the Palestinian Authority to do so.
28. The Minister of Women’s Affairs was proud of the fact that,
on gender issues, Palestine was a pioneer in the Arab world. The
Ministry works together with other ministries, non-governmental
organisations (NGOs) and other partner institutions to implement
an inter-sectorial gender strategy. Much work had been done in the drafting
of the new penal code, which was adopted by the PLC but not yet
ratified by the President, to eliminate discrimination against women.
This had received the support of religious leaders and of the population
in general. The Minister had attended three sessions of the Parliamentary
Assembly and she followed with interest the work of the Committee
on Equality and Non-Discrimination.
29. Women were however still under-represented both in public
and in political life. It was proposed to increase the quota for
women from 20% to 30% on the occasion of the next general election.
In 2013, the President of the Palestinian Independent Human Rights
Commission reported an increase in violence against women, including
so-called “honour crimes”. Prosecution of perpetrators was not very
effective due mainly to the lack of appropriate legislation.
30. Israeli soldier Gilad Shalit was freed from custody in Gaza
in October 2011, in accordance to one of the obligations PNC took
upon itself as a partner for democracy. Prisoners’ organisations
complained about the situation of prisoners in Israeli prisons,
but also in Palestinian prisons. Concerning Israeli prisons, administrative
detention was a serious problem and there were allegations of torture.
Young prisoners were treated as adults and there were complaints
that sick people did not receive appropriate medical assistance. There
were also reports of serious violations of the rights of prisoners
in Gaza, where Hamas was now executing prisoners who had been convicted
in the 1990s.
31. The General Commissioner of the Independent Commission for
Human Rights, Dr Ahmad Harb, pointed out positive developments in
some areas: civilians were no longer brought before military courts
and political prisoners had been freed. Shortcomings, however, still
existed: police agents disrespected citizens’ rights; impunity was
widespread; some people were arrested and detained for long periods
for no reason; and torture cases had been uncovered. Structures
and methods were in place to deal with most of the problems, but mentalities
could not be changed overnight.
32. Dr Hanan Ashrawi, member of the PLO Executive Committee, was
rather pessimistic about the situation. The Israeli occupation,
and in particular the development of settlements, was making it
more impossible to achieve the two-State solution as each day passed.
The Israeli population was not even aware of the situation as this
was not correctly reported by the media. Hamas was holding all Palestinians
hostage. The Quartet was used by the Americans to show that something
was moving when nothing was. Emigration, in particular of Christians,
was changing the Palestinian identity.
33. We were told that the new Palestinian electoral law was ready
and an agreement had been reached with Hamas in 2012 to start voter
registration with a view to the holding of general elections in
January 2013. The CEC had been appointed with the agreement of all
political parties (including Hamas) to prepare for general elections
in the whole of the Palestinian Territories. On 1 July 2012, however,
the operation was postponed due to the refusal of Hamas to allow
the CEC to start its work in Gaza. Reasons given for this included
Hamas complaining that Israel put in jail any of their elected members
or saying that there was no point in holding elections if the results
were not to be respected. The reason could also be that Hamas did
not really want elections because it feared it might lose them.
In 2013, the CEC was finally allowed to finish registration in Gaza,
so that technically Palestine is ready for elections.
34. After being postponed several times, local elections were
held in the West Bank (but not in Gaza) in October and November
2012. The elections were deemed to have been free and fair but the
turnout was quite low, as compared with the general elections in
2006, and the Hamas refused to take part or to accept the results.
The CEC stands ready to organise elections in the whole of the Palestinian
territories as soon as an agreement is concluded.
35. Many of those I met on my 2013 visit welcomed the European
Union’s “Guidelines on the eligibility of Israeli entities and their
activities in the territories occupied by Israel since June 1967
for grants, prizes and financial instruments funded by the EU from
2014 onwards”, which exclude Israeli entities or activities based on
the occupied territories. Some asked Europe to boycott products
which originated in the illegal Israeli settlements in the West
Bank. President Abbas emphasised that this did not mean a boycott
of products made in Israel.
36. With respect to the Council of Europe and in particular the
Assembly’s responsibilities towards the PNC, the members of the
Palestinian partner for democracy delegation, who have been very
active in the Parliamentary Assembly since the granting of the status,
are pleased with their participation in the work of the Assembly,
at committee and plenary levels. Mr Bernard Sabella, the Chairperson
of the delegation, said the Council of Europe was a “good school”.
Members of the delegation called for a more active role of the Council of
Europe in making Israel respect its obligations.
37. Other parliamentarians, including from Hamas, agreed on the
value of the partnership for democracy with the Parliamentary Assembly
and asked for it to be continued. All those I met in my visits were
of the same opinion.
4 Conclusions
38. A detailed assessment with respect to each of the
commitments accepted by the PNC when it became a partner for democracy
with the Parliamentary Assembly can be found in the draft resolution.
I am convinced that the PNC would like to comply with all the commitments
it undertook when signing the partnership. However, given the circumstances,
it has become increasingly difficult, or even impossible, to meet
some of these commitments. The ongoing Israeli occupation and the
refusal of Hamas to respect the successive reconciliation agreements
are the main blockades.
39. While I do not agree with all our interlocutors who feel that
the Israeli occupation is the basis of all their problems, I have
to state that such occupation makes solutions for the problems much
more difficult and sometimes impossible for the Palestinians. As
Mr Erekat put it, “I do not use the occupation as an excuse, but if
the Israelis want, I will not be able to come to my office”.
40. In this context, the PNC expects the Council of Europe and
the Assembly to increase their efforts with a view to achieving
the release by Israel of all elected PLC members and ensuring that
all PLC members can participate in the elected Parliament of the
Palestinian Territories. Israel, as a state whose parliament enjoys observer
status with the Assembly, should allow and facilitate the PNC, as
partner for democracy with the Assembly, to fulfil the commitments
it undertook when signing the partnership with the Assembly.
41. At this point, I find it relevant to quote Mr Doron Avital
when he intervened on behalf of the Knesset, in October 2011, in
the debate on “The request for partner for democracy status with
the Parliamentary Assembly submitted by the Palestinian National
Council”: “I have here today a full mandate to convey to you on
behalf of our parliament, and on behalf of Israeli society at large,
our hopes and belief that this step, as it represents a general
drive in Palestinian society towards democracy and democratic ideals,
will indeed prove helpful to the peace process and to the negotiations
between our two societies, which I urge Palestinians to join. A commitment
to democracy and to democratic ideals, as all of us in this room
know, is an ongoing and demanding process. We Israelis know that
very well, as the most recent events on our streets have proven.
I am glad that Palestinian society has expressed the will to take
this big commitment upon itself, and I wish it success in this important
endeavour. I have no doubt that strengthening the democratic foundations
of Palestinian society will prove a constructive and helpful step
with respect to the peace process and, I hope, towards a historic
resolution of the conflict between our two nations.”
42. The fact that Palestine is not a full member of the United
Nations prevents full co-operation with its special mechanisms,
including the United Nations Universal Periodic Review. However,
the non-recognition of Palestine as a State by most member States
of the Council of Europe does not prevent it from adhering to Council
of Europe conventions and other legal instruments, provided that
there is agreement within the Council of Europe Committee of Ministers
(by a two-thirds majority) and among the States Parties to such
instruments (unanimity).
43. The Assembly should encourage the Secretary General of the
Council of Europe to take all necessary steps, together with relevant
partners, to mobilise the Organisation’s expertise, including that
of the Venice Commission, with a view to contributing to the full
implementation of democratic reforms in the Palestinian Territories.
I am informed that when the Secretary General visited Palestine
in May 2012, the Palestinian Authorities had expressed interest
in co-operating in the areas of the reform of the judiciary, the
promotion of good governance and the prevention of trafficking in
human beings. Unfortunately, there has been no follow-up in practical
terms.
44. In conclusion, the Assembly should welcome the progress achieved
and resolve to continue reviewing the implementation of political
reforms in Palestine and to offer its assistance to the PNC. Finally
it should make a new assessment of the partnership within another
two-year period.
