Law

Lifting the Headscarf Ban in Turkey: Where do we go from here?

Fri, 15 Feb 2008 15:38:39 -0500

On February 9, 2008 the Turkish Parliament voted to amend the constitution, thus permitting women to wear the headscarf when entering the university- another step in the long-running dispute over secularism in Turkey. Devotees of Turkish secularism, who support the view that expressions of attachment to religion have no place in the public arena, will not quietly accept the change in religious behavior which the Islamic-oriented politicians have now voted to enact.

The first line of defense for the secularists will be to rely on the opposition Republican Peoples Party. Despite the fact that it lacks enough deputies in Parliament to prevent enacting the amendment, the party has pledged to take the issue to the Constitutional Court. Indeed, the head of the court warned politicians against softening the ban on headscarves in a speech on February 7. The Republican Peoples Party and others will argue that provisions entrenched in the Constitution prohibit changes to the secular nature of Turkey’s political scene. Though the chances of success are unclear, it will at the very least embitter relations between secularists and advocates of outward forms of Islamic piety. And polls have shown that those who favor freedom to wear a headscarf represent more than half the population of Turkey.

The argument will no doubt reflect clashing legal interpretations. Already we see that the Turkish legal community has held contentious meetings over whether the headscarf ban can legally be circumvented. In the end, the argument may hinge on this amendment’s proposed form of headscarf wearing. According to strict Muslim etiquette, no hair can be visible on a woman’s head. The ruling party in Turkey, on the other hand, is arguing that they instead would oblige those who wanted to cover their hair to wear a kerchief tied under the chin, thus making it difficult or impossible to cover every lock of hair. This is said to be a Turkish style and not necessarily an Islamic display. While its proponents argue that this reasoning could pass muster for secularists, it is unlikely to be accepted by either side. Secularist women in particular fear that this is the first step toward eventually forcing all women to cover their hair.

Although outnumbered, the secularists have several important political forces on their side. In addition to warnings by members of the courts, rectors of some of Turkey’s leading universities have gone so far as to complain that easing the ban would “turn Turkey into a religious state.” In accordance with this view, some university professors and others of the educated elite are determined to frustrate the ruling party. There is talk that they would be ready to expel headscarf wearers from their classes regardless of what the law and Constitution might permit. Were that to happen, it would inevitably entail more bitter legal battles and acrimony on campuses all over Turkey.

Of course, the main question that hangs over this dispute is the behavior of the military. Despite the fact that much of the officer corps has its roots in rural Turkey, normally the bastion of devotion to Islam, the senior generals have purged the ranks of any who do not appear to subscribe to the secularism of modern Turkey’s founder, Mustafa Kemal Ataturk. Accordingly, the military has been among the most extreme opponents of relaxing the ban on headscarves. In witness to this attachment to secularism, the generals called out tens of thousands of secular Turks last year to show solidarity in support of Turkey’s secular regime.

This year, top leaders of the military have been more circumspect. The Chief of the General Staff recently told the press that everyone knew where the military stood and thus it was not necessary to make any new pronouncement. While the military leadership has so far remained on the sidelines, secularists- particularly women- rallied just before the Parliamentary vote in demonstrations against a lifting of the ban on headscarves. It seems likely such demonstrations will continue along with court challenges.

Turkey thus appears to be in the midst of a disorderly process. While the military is likely merely to watch and wait, after their bluff was called when last year’s parliamentary election returned in favor of the Justice and Development Party, its supporters to continue to find ways to resist. To do more, however, would risk disrupting the course of negotiations to enter the European Union, which both Islamic-oriented parties and secularists favor. And the military knows that ruling Turkey is no job for the soldiers.

Solving the Saudi Succession Puzzle

Thomas W. Lippman — Wed, 29 Nov 2006 12:00:00 -0500

If there is one thing the ruling princes of Saudi Arabia have shown they are good at, it is self-preservation. They demonstrated their skill once again last month with an adroit political maneuver that drew little media notice in this country because of the carnage in Iraq, but could have long term significance for the the Gulf region and for the United States.

King ‘Abdullah announced a new system for choosing future kings, designed to ensure smooth continuity whenever the monarchy is vacated. He issued a new “Allegiance Institution Law” designed to cover every eventuality: death of the king; simultaneous death of the king and crown prince; temporary incapacity because of illness; and long-term disability.

This news can only be encouraging to those who wish to see long-term political and economic stability in that vital country. But it will not be encouraging to those who believe in promoting democratic reform in the Arab world because the purpose of ‘Abdullah’s move was to fortify the monarchy, not to open up the country’s political process. Its aim is not to give the Saudi people any voice in selecting their leader but rather to codify the existing informal system in which the king and his brothers have the absolute power to designate the next in line for the throne without any explanation of their decision.

The new procedure is more like the selection of a Roman Catholic pope, chosen in a secret conclave by princes of the church, than it is like any democratic system. Just as some cardinals are deemed “papabile,” or suitable to become pontiff in the event of a vacancy, a handful of the many sons and grandsons of Saudi Arabia’s founding King, Abdul Aziz ibn Saud, are understood to be in the running as future kings.

No one outside the House of Saud has any real knowledge of who might be on the list. Any speculation by scholars or think-tank analysts about the line of success is just that — speculation.

Saudi Arabia’s ambassador to the United States, Prince Turki al-Faisal — sometimes mentioned himself as a possible future king—told a Washington audience on October 30 that the new law represents “a contract between the ruler and ruled. The ruler obliges himself to protect, promote, and enhance the lives and property of the ruled; and the ruled oblige themselves to protect, promote, and obey the ruler in everything but that which counters the teachings of God.” He did not say how the “ruled” took on this obligation to obey; in fact they have no choice in the matter.

This won’t matter much to American policymakers, to whom the new law will come as something of a relief because it eliminates a possible source of trouble in Saudi Arabia. Public input is irrelevant. It has been clear since ‘Abdullah met with President Bush at his Texas ranch in April 2005 that Washington was not going to press the Saudis for political liberalization because the Saudi regime is too valuable on other fronts. The Saudi regime has persuaded Bush and his advisers that it is part of the solution on the “war on terror,” not part of the problem, and therefore stability trumps reform, as it almost always has in the 60 years of the US-Saudi alliance.

In case anyone doubted that the Saudis regard themselves as beyond the reach of Bush’s quest for democratization in the Arab world, Prince Turki proclaimed it: “We are not in a hurry to experiment with foreign interpretations of democracy or methods of government,” he said.

Until the new law was issued, the question of who would become king after ‘Abdullah and his designated successor, Defense Minister Prince Sultan, was a gnawing point of concern about the Kingdom’s future. Both men are more than 80 years old, Sultan has reportedly been treated for cancer, and no one has been selected to become ruler after them.

They and other senior princes — all sons of King Abdul Aziz — have many sons of their own in positions of influence who might aspire to take over after Sultan passes from the scene. To outsiders, the potential jockeying among the princes of this “grandsons generation” has raised questions about the cohesion of the House of Saud and thus about the stability of the country.

There appears to be no other imminent threat to the ongoing rule of the al-Saud family. The wave of extremist violence that broke out in 2003 has receded. The perpetrators of the bombings that wracked Riyadh and other cities and frightened foreigners out of the country have been killed or rounded up by the security forces, and they never gained support among the general Saudi population. Moreover, because ‘Abdullah has curbed the corruption that inspired popular anger and has reached out to the country’s Shi’a Muslim minority and other marginalized groups, the House of Saud is less unpopular than it appeared to be before ‘Abdullah took over last year.

The al-Saud family has ruled what is now Saudi Arabia since the 1920s, when Abdul Aziz overpowered rivals from other tribes and unified the country. The root of the succession problem lies in the fact that Abdul Aziz fathered some 45 sons, of whom 23 are still alive, and did not specify how his successors were to be chosen. Until now it has been an informal process among the princes; it is not based on birth order, but upon negotiation and compromise within the family.

Thus, the most serious threat to stability appeared to be the possibility that the princes would split in a power struggle, as they did in the 1960’s. The contest of that decade pitted two other sons of Abdul Aziz, Faisal and Saud against each other and traumatized the family. Ever since then such matters have been thrashed out among the princes, out of public view. When ‘Abdullah became king upon the death of his half-brother Fahd last year, he promptly named another half-brother, Sultan, as crown prince. Many Saudi-watchers believe the likeliest candidate after Sultan is Prince Salman, a half-brother of ‘Abdullah and a full brother of Sultan. Salman, aged 70, is the longtime governor of Riyadh.

Under a 1992 law, “Rule passes to the sons of the founding king...and to their children’s children. The most upright among them is to receive allegiance in accordance with the principles of the Holy Koran and the tradition of the Venerable Prophet,” Muhammad. But the law also gave the king the power to choose his successor. What would happen if other princes did not accept the designated heir as the “most upright” was not clear?

Now King Abdullah has established a more formal system. He created a committee of princes, called the “Allegiance Institution,” to designate future crown princes. Because Sultan has already been chosen as next in line after Abdullah, the new system will take effect only after Sultan becomes king. Once that happens, and in all future cases, the new king is to nominate one, two or three candidates to be his successor. Committee members may accept a nominee or reject all three. “If the committee rejects all the nominees, it will name a Crown Prince whom it considers to be suitable,” according to a translation provided by the embassy.

This process is to be completed within 30 days. In the past, long intervals of uncertainty have sometimes ensued as a new king has delayed naming a successor.

Perhaps more important, the new law specifies the procedures to be followed if the king is incapacitated. This is clearly intended to avoid a repetition of the uncomfortable period between 1995 and 2005, when Fahd was disabled by a stroke. ‘Abdullah was de facto ruler, but his power was limited because he was not king; many important reforms were delayed or set aside because of that vacuum.

The official announcement of the new system does not answer all questions — it says members of the Allegiance Institution must be “capable and known for their integrity” but does not say how those qualities are to be determined, nor does it specify what happens after the passing of all the grandsons, many already approaching old age. Nevertheless, given the way the House of Saud operates, it can be assumed that ‘Abdullah issued his decree only after extensive discussion with his brothers and probably some of the key nephews, and that they have signed off on it. That means the family will not allow or encourage any aspirant to stake a claim outside the system when the time comes.

Once again the House of Saud displays its talent for survival.

Iraq: The Tortured Issue of Amnesty

Wayne White — Fri, 7 Jul 2006 12:00:00 -0400

Amnesty proposals for Iraqi insurgents have angered many Iraqis and Americans alike. But if there is to be a realistic chance of removing large numbers of Sunni Arab insurgents from the battlefield, such an amnesty must be as inclusive as possible. The government also must be able to keep its side of the bargain.

An amnesty might exclude indigenous Iraqi insurgents with blood on their hands, or, as Shi’a leader Abdul Aziz al-Hakim reportedly declared on July 3, “Saddamists and takfiris” (presumably former Ba’th Party cadres and anti-Shi’a Sunni Arab militants). That would leave many thousands in the field to continue the fight themselves, assist fanatics associated with al-Qaeda in Iraq, and to shame or strong-arm other insurgents eligible for amnesty to keep fighting alongside them.

The situation on the ground in Iraq remains serious. It requires boldness if there is to be any hope of breaking the bloody stalemate between the government, Coalition forces and much of the Sunni Arab heartland. Nonetheless, the sheer scale of Sunni vs. Shi’a bloodshed, much of it on the part of al-Qaeda in Iraq and Shi’a militias, makes the Shi’a dominated government’s thoroughgoing amnesty offer very difficult.

The notion of an amnesty that includes those who have shed blood is not all that new. In fact, by one description or another, such sweeping amnesties often have been recognized as the only way to bring a certain amount of hope to especially bloody or potentially serious conflicts. George Will noted in a recent commentary an important amnesty in American history was that given to Confederate soldiers at the end of the Civil War, many thousands of whom had killed Union soldiers in the course of that long and terrible war.

Perhaps more relevant to the case of Iraq is Algeria’s late-1990’s amnesty to insurgents. The Algerian amnesty is instructive because it provides one way of dealing with insurgents who would not otherwise qualify (i.e. those already with blood on their hands). Those who had inflicted casualties on government forces, but who had not engaged in atrocities such as murder, rape, etc. against civilians, were eligible for a partial amnesty—a reduced penalty for what they had done. This combined full and partial amnesty package removed from the battlefield virtually the entire armed wing of the Front Islamique du Salut (FIS). It led to the isolation today of Algeria’s few remaining GSPC-affiliated terrorists.

One problem with an amnesty proposal is the Iraqi insurgency is still quite robust. Situations involving amnesty work best when the party offering amnesty already has gained the upper hand over those on the receiving end. It is likely that many Iraqi insurgents still believe they can prevail, regardless of whether they are eligible for whatever amnesty formula might emerge from this debate.

One other issue is critically important, terribly basic and a major obstacle to any offer of amnesty: trust. Those insurgents who accept amnesty must be reasonably confident that when they turn themselves in, they would not be killed or otherwise ill-treated. With respect to those who might respond to a more inclusive amnesty, they must be sure they could benefit from due process of law. Although the regime in Algiers was notoriously heavy-handed and authoritarian, the government did succeed in convincing those being offered amnesty that it would keep its end of the bargain.

Large numbers of Sunni Arab insurgents will not turn themselves in if they run the risk of being murdered by government security forces dominated by Shi’a militias, militias themselves (or Kurdish Peshmergas), or other ethno-sectarian vigilantes.

In the end, the issue of amnesty takes us right back to bedrock issues continuing to plague governance in Iraq: widespread ethno-sectarian violence, an inability to maintain law and order (regarding not only the insurgency, but also serious crime), and failure to disarm and disband powerful militias.

Governance in Iraq is an iffy affair beyond the Green Zone, to say the least. Ministries and courts face an enormous challenge just to do their jobs. Therefore, the ability of Prime Minister Nuri al-Maliki to convincingly offer safety to those who might take advantage of an amnesty is clearly as important as the nature of the amnesty itself.

Kuwaiti Elections: New Voices

Jennifer McElhinny — Fri, 9 Jun 2006 12:00:00 -0400

Kuwait is in the midst of a political transformation. The past month has showcased the first youth movement demanding political reform and more backbone from their political representatives. Parliament has been dissolved. The new election, now set for the end of June, will reveal more registered women voters than men and promises to further the reform process. Eligible Kuwaiti female voters outnumber Kuwaiti men four to three.

Yes, Kuwait’s executive still wields undue influence over its democratically-elected parliament, but the latest developments clearly indicate radical change is underway. Democratic practices are entrenched and expanding.

Kuwait’s Emir exercised his constitutional authority to dissolve parliament on May 22 in response to increasing criticism within parliament and society over the number of constituencies in legislative elections. Kuwaitis currently vote in 25 constituencies, or electoral districts. Liberal, Islamist, Shia and centrist parliamentarians in Kuwait found common cause, arguing that the high number of electoral districts encourages corruption by making vote buying easier. It also privileges smaller constituencies and enables candidates to run on tribal affiliation rather than broad national platforms.

When the government appeared to back away from a reform proposal initiated in May, more than half the 50 members of parliament walked out in protest. This dramatic move was preceded by an unprecedented public pressure campaign from a customarily powerless sector of Kuwaiti society.

Debate over the constituencies sparked the birth of a youth campaign for reform that labeled itself the “Orange Movement” for the color its activists wore. The Orange Movement represented diverse groups of Kuwaiti youth, conservatives and liberals, women and men, who gathered and slept in front of the National Assembly and in the gallery and organized rallies using the internet and cell phone text messaging. They distributed materials lobbying the government to address corruption in the political system by reducing the number of electoral constituencies to five.

The mobilization of Kuwait’s youth around this reformist agenda startled the government as well as society. Kuwaiti youth, well versed in electoral politics from active campaigns for student representatives in university, are no longer content to sit on the sidelines. Their political influence is demonstrated by their numbers and will only grow. Nearly 40 percent of the population is under 25. The voting age in Kuwait is 21.

It was pressure from youth groups that prevented efforts to soften the reform process through a government-backed proposal to consolidate the districts into ten. The government was charged with flip-flopping on reform, and facing a legislative deadlock, the Emir chose to dissolve parliament and schedule elections for June 29.

The acceleration of Kuwait’s next legislative election by more than a year brings to the forefront another major transformation within the political system. A year ago, Kuwaiti women were given the right to vote and run for office. Women are already well integrated into the economic, educational and civic spheres, and had begun to develop political platforms for the July 2007 legislative elections immediately after receiving the right to vote. After the parliament was dissolved and, with only two weeks to declare candidacy, Kuwaiti women quickly answered those who questioned if their enfranchisement could affect the domestic political scene.

Thirty-two Kuwaiti women have declared their candidacy for parliament. Women have rented large tents to campaign in traditional Kuwaiti style, host prospective voters and speak to mixed groups about their platforms. The most striking effect of their participation has been the immediate transformation of political platforms of both male and female candidates to reflect long-neglected political concerns of Kuwaiti women.

It is premature to suggest that Kuwaiti women will vote for different candidates than their husbands, fathers and brothers did in the past. Evidence from Kuwait University, where women make up around 67 percent of the voting student body, indicates Kuwaiti women routinely elect male and Islamist candidates. Still, it is clear that all political candidates have quickly learned to respect the power Kuwaiti women now wield.

Both male and female candidates show a new commitment to reforming laws that have left Kuwaiti women as second-class citizens. One law getting a lot of attention in campaign speeches is the nationality law that prevents Kuwaiti women who have non-citizen husbands from passing Kuwaiti citizenship to their children.

Kuwait’s political system is in flux. Gone are the days when the Emir could dissolve parliament without declaring elections within the constitutionally-mandated two months, as the former Emir did in 1986. Some analysts suggest the move to dissolve parliament allows the powerful executive to shrink the political space for debate and reform. This may be true, but it overlooks just how far Kuwaitis have come in transforming their political system.

Kuwaiti women and youth are flexing their newfound political muscle with dramatic results. The Orange Movement has taught Kuwait’s youth they can successfully voice their political views and gain public support. Kuwaiti women have shown they can and will vote and run for office, despite death threats against some female candidates. These new voices appear determined to make sure Kuwait’s democratic reforms endure.

Western Sahara: The Conflict Lingers

Jacques Roussellier — Fri, 26 Aug 2005 12:00:00 -0400

Self-congratulatory statements could be heard reverberating from Washington after the release of 404 Moroccan prisoners-of-war held by the Algerian-backed Polisario separatist rebels fighting for the independence of the Western Sahara region. The release is a fitting tribute to the tenacious, yet discreet, bipartisan American diplomacy that spanned the Clinton and Bush administrations. Still, the release does not fundamentally shift the political dynamics of one of Africa’s longest conflicts.

More than 2,100 Polisario-held POWs, captured between 1978 and 1991, were counted in 1995. Their piecemeal release started in 1996 and intensified after 1999. It was part of efforts to find a political solution to the Western Sahara dispute that for 30 years has pitted pro-annexation Morocco against pro-independence Algeria. The newest prisoners have been detained for fifteen years, others for more than 20 years.

The POW release was followed by calls to seize the opportunity to restart negotiations. But, it is hard to see how a new climate of confidence can overcome past failures, particularly the failed UN-brokered efforts at holding a referendum on self-determination between 1991 and 2000 and the current deadlock over a five-year autonomy plan.

Morocco’s reaction did not augur well for future talks. Rabat still holds Algiers accountable for a breach of international humanitarian law on its territory and denies that the POW's release was the Polisario’s gesture of good will. Instead, it has lavished praise on the US for bringing about the release and hailed the positive impact of international pressure

There is concern that a political vacuum in the strategic south-western Algeria, northern Mauritania and Western Sahara triangle could play into the hands of terrorist groups operating in the Sahara's vast expanses. New US counter-terrorism efforts, such as the Trans-Saharan Counter-Terrorism Initiative that prepares training military units in Chad, Mali, Mauritania and Niger for security cooperation and support for democratic governance, have revived interest in securing a lasting solution for Western Sahara. The recent coup d’état in Mauritania and attacks by a terrorist group based in Algeria’s Saharan desert only underscore the overall fragility of US counter-terrorism engagement in the Sahara and the endless deadlock in peace negotiations on the Western Sahara conflict.

Sadly, the POW issue is not the only remaining obstacle to improving relations between Morocco and Algeria. Disagreement over the Western Sahara is only the symptom of a deeper rivalry between two competing national identities and developmental approaches. Above all, the search for a political solution should consider that both sides perceive a settlement as a draw, in terms of national security and regional ambitions.

In the age of globalization, free trade and regional integration, there is little room or understanding for an old-fashioned territorial dispute over a piece of the Sahara desert that does not boast any really significant natural resources. Successful negotiations that pave the way for a lasting solution to the Western Sahara dispute will stand as a powerful signal of a much-needed rapprochement between Rabat and Algiers. They also would boost US-backed counter-terrorism efforts, which would be weakened without regional integration of programs in North Africa and the Sahel.

Morocco and Algeria stand to gain from successful counter-terrorism exercises in the region as long as signals from Washington are not misconstrued as meaning progress on the Western Sahara dispute can take a back seat to bilateral cooperation on counter-terrorism with the US. There is a historical opportunity now to link the two issues in a long-term approach that will require simultaneously seeking a peaceful solution in Western Sahara and pursuing counter-terrorism initiatives in the Sahara desert as a whole.

The release of the Moroccan POWs is about the only progress that has been made recently toward a negotiated solution on Western Sahara. Rabat and Algiers have been playing a tiresome game of predictable statements, political liturgies and empty words that barely serve their own domestic political agenda at the expense of a mature and farsighted search for cooperative approaches.

As long as the United States and the Europeans turn a blind eye to Moroccan and Algerian prevarications in Western Sahara and allow the opportunity for peace to pass by, nations gathering for the 60th anniversary of the United Nations next month will continue to face the unresolved dilemma of Africa’s last colony.

Why Is Federalism Rare in the Middle East?

Michael C. Dunn — Fri, 12 Aug 2005 12:00:00 -0400

The completion of an Iraqi constitution has been delayed in large part because of a debate over whether the state should be a federal one, as the Transitional Administrative Law (TAL) had defined it, or a unitary one. Kurdistan has enjoyed autonomy since 1991 and remains insistent on a federal system. But, many Sunni Arabs fear that too much federalism would undermine the unity of the state and exclude them from sharing the oil revenues from the fields located in Shi‘ite and Kurdish regions.

The quarrel over federalism is larger than just Iraq. The Middle East is a mosaic of minorities and ethnicities. Many minorities are small or geographically dispersed, such as the Christian populations of the Arab world, or the groups of ethnic Circassians found in the Levant. But many others are significant communities with geographical cohesion -- the Berbers in North Africa, the Kurds in the Middle East and the non-Arab populations of southern Sudan.

The presence of substantial ethnic, linguistic or religious minorities in many countries has long been a problem. A federal system granting a reasonable amount of regional autonomy would seem the natural solution. And yet, only a handful of federal experiments have succeeded.

The United Arab Emirates, in fact, is the one truly federal experiment in the Arab world that has worked over a reasonable period of time. It is something of a special case. Of the seven emirates, only Abu Dhabi and Dubai might be able to make it on their own as independent states. The others are too small and in many cases too poor, but in a loose confederation with Abu Dhabi and Dubai they have become part of one of the world’s most prosperous states.

Sudan now is experimenting with a new federal system. Sudan's earlier attempt at federalism, from 1972-1983, collapsed after the central government essentially reneged on the deal. Sudan’s new federal arrangements are still untested. The fierce rioting that followed the recent death in a helicopter crash of Southern President (and national First Vice President) John Garang is not encouraging. Besides, the peace plan gives the south the right to secede entirely in six years if the federal system does not work. The Sudanese experiment is a daring one but it is far too early to proclaim it a success.

Other attempts at federal systems have usually been linked to the chimeric efforts at Arab unity in the 1960s and 1970s. To give one example, Egyptian domination of the Syrians was so thorough under the United Arab Republic (1958-1961) that it led to the union’s break-up.

Why have federal systems mostly failed in the Middle East? The answer may be found in the tradition of centralized authority and, perhaps to a lesser extent, in past Arab nationalist ideologies.

Centralized authority has been the rule. Traditional governance in the Middle East has long centered on the major cities. When local regions did enjoy a certain autonomy, it was usually because of the inability of the central government to enforce its rules. In some of the region’s more mountainous terrain, autonomy was often the result of natural defenses that aided local resistance.

In much of the Arab world, the tradition has been reinforced in more modern times by autocratic regimes and systems under which provincial governors are appointed by the capital, not by local authorities. Autocrats worldwide tend to favor centralized authority over local autonomy. Consider the refusal of Spain under Francisco Franco to even acknowledge the linguistic rights of Catalans, Basques or Galicians, all of whom today enjoy regional autonomy. Consider too the fact that all of China, despite its size, has only one time zone: Beijing’s.

Federalism also has to confront the role of Arab nationalism and identification with a perceived al-watan al-‘arabi or Arab nation. Arab nationalism in its various forms — Nasserism, Ba‘athism, and other variants — emphasized ‘uruba, Arabism, as a national identity transcending the individual Arab nation-states. But, by emphasizing Arab identity, it left the substantial non-Arabic-speaking populations — Kurds, Berbers, southern Sudanese, and others — out of the national fabric of identity.

Ironically, the passing of the vogue of Arab nationalism may have eased some of the problems of dealing with non-Arab identities but the rise of political Islam has created similar problems of handling non-Muslim minorities in a Muslim state. Christians, Jews, Mandaeans, Zoroastrians, Yazidis and other religious minorities find themselves in an awkward position in countries that identify the state with Islam.

In Iraq today, some sort of federal solution seems inevitable, since the Kurds will obviously not settle for anything that reduces the autonomy they already enjoy. But, the provision in the Transitional Administrative Law that would allow similar autonomous regions elsewhere might not make it into the new constitution.

Iraq’s Sunni Arabs, who were the primary support group for the former nationalist Ba‘ath rule, are the least comfortable with a federal system that gives more authority to Kurds and Shi‘ite Arabs. But they are not alone in opposing it. Many Shi‘ites also worry about any arrangement that would weaken Iraq’s national identity or seem to encourage separatism.

Observations on the Or Commission Report

Dr. Yitzhak Reiter — Wed, 10 Sep 2003 12:00:00 -0400

The Report of the Or Commission, the special government body appointed to investigate the killing by Israeli police of 13 Israeli Palestinian protesters in October 2000, will not change the relationship between the State of Israel and its Palestinian minority.

The commission concluded that the police had wrongfully fired at the protesters and recommended measures be taken against those policemen involved. Furthermore, the report highlighted the state's continued exclusionary policy toward its Palestinian citizens and their leadership. However, so many, more violent actions have transpired since October 2000 that the report is unlikely to have much impact on either the Israeli or the Palestinian public.

A few days before the commission submitted its report, the Israeli cabinet instituted a new policy to integrate Palestinians into Israeli society. This policy could have been a landmark in Israeli-Palestinian relations had it not been for the policy’s vague terminology and lack of benchmarks. The policy resembles the first Rabin Cabinet’s resolution after the Land Day protest of 1976 – from which nothing was implemented nor did anything materialize.

The riots of October 2000 in the Israeli Arab sector, which erupted in the wake of the violent Al-Aqsa Mosque clashes following Ariel Sharon's visit to the Temple Mount compound, underscore the extent of the Palestinian-Israeli conflict. Discriminated against and excluded from important public spheres, the one million Israeli-Arab citizens stress their Palestinian identity, express solidarity with the Palestinian struggle, and view terrorist actions against Israel as legitimate “resistance.”

Since the Al-Aqsa Intifada there have been a growing number of Israeli Arabs involved in terrorist actions toward the Israelis (68 between January and October 2002 compared to 2 in 1999 according to Haaretz on June 11, 2002). Threatened by demographics that favor the Arab citizens and by their political and intellectual elites who opt for changing Israel into a bi-national state, it should come as no surprise that many Israeli Jews view their Palestinian counterparts as “the enemy.” Former Israeli Prime Minister Ehud Barak contributed to this perception and even inflamed it when, after the collapse of the Israeli-Palestinian Peace talks, he further dampened an atmosphere of desperation by saying, “There is no partner for peace among the Palestinians.” During his three years, he neglected the Palestinian leadership and humiliated them – despite the fact that he received 97% of the Israeli-Arab vote.

Many scholars and analysts dwell only on the Israeli government’s policy of exclusion as the most important explanation for current mutual alienation, but the affect of the broader Israeli-Palestinian conflict on internal relations is an additional, important factor. Today, this internal conflict may also be hampering the ability to achieve peace between Israelis and Palestinians. Palestinian leaders are attempting to redefine Israel from a “Jewish and democratic state” to a “state of its citizens” or even a bi-national state. They are also aiming to repatriate Palestinian refugees to their original villages and homes, which diminishes the Israeli public’s readiness for compromise with the Palestinians.

Comments on the Final Draft Palestinian Constitution of February 2003

Nathan J. Brown, Adjunct Scholar, Middle East Institute — Thu, 20 Feb 2003 12:00:00 -0500

[NB: Dr. Brown is perhaps the first American scholar to comment on the final draft Palestinian Constitution (as published in Al-Ayyam newspaper this week), which is now ready for submission to the Central Committee of the PLO. Once the PLO Central Committee has approved it, the constitution will be voted on in public referendum – The Middle East Institute.]

While a Palestinian state seems as distant as ever, the process of writing its constitution has become closely connected to recent international and Palestinian debates about reform and governance. The committee charged by the PLO to draft a constitution for a Palestinian state is due to release its work this month and has already leaked a copy to the daily Al-Ayyam this week. The entire project is caught in a difficult combination of internal and external pressures. The committee's February 2003 draft goes a long way to answer many diverse demands, but significant issues and controversies remain.

Comments

Prime Minister: External and internal supporters of Palestinian reform are both united in their desire to see a strong prime minister. Part of the motivation is personal: 'Arafat's leadership style as president impedes the efforts of domestic reformers. The international constituency has another motivation: empowering a prime minister might make a compromise possible between the American and Israeli governments (who insist on 'Arafat's replacement) and Palestinians who insist on the right to pick their own leaders.

The idea of a Palestinian prime minister is hardly new or radical. Most Arab states have prime ministers without diminishing the authority of their president or king. Interim drafts of the Basic Law also provided for the position, though the idea was finally dropped, partly because the Oslo Accords made no provision for it. Since the constitution committee began work in 1999—long before any American official or Palestinian public interest—a prime minister has been part of their plans.

What matters, therefore, is not the creation of the position but the powers granted to it. Drafters have devoted much attention to the relative powers of the president and the prime minister; indeed, there are few areas in which the language shows more signs of careful phrasing and hidden debates. In general, the committee has worked to contain presidential power, sometimes quite sharply, though they have stopped short of converting the presidency into a purely ceremonial position. The president does retain some authority: he heads the "national security forces" (though not the police), conducts foreign relations, and, if he chooses to attend cabinet meetings, he may chair them. The drafters have used very specific language designed to ensure that the president exercises his authority through, rather than around, normal legal institutions and channels. Most of his appointment powers require the consent of the parliament or another body or official. The drafters have gone still further, transferring important authorities to the prime minister and the cabinet and specifying that matters not given to the president by the constitution are to be within the competence of cabinet.

Nevertheless, it remains unclear how the Palestinian system—were it ever enacted—would work in practice. A technocratic prime minister might require constant international pressure to operate independently of the president. A prime minister with strong support from a political party and with backing of the parliament could probably emerge as an independent figure, eventually edging out the president in influence. But such a development might be limited as long as 'Arafat—head not only of the Palestinian Authority (PA) but also of Fatah, the largest Palestinian political party—remains on the scene. Ultimately, the 2003 draft may not go far enough to satisfy American and Israeli concerns, but it may do much to answer gentler European and Palestinian critics.

Empowering the negotiators: The 2003 draft constitution will be judged domestically and internationally by what it says (or omits) on two critical national issues: refugees and borders. The drafters rejected one possible path—ignoring both issues on the grounds that few constitutions anywhere define such matters. But they have taken steps to ensure that the constitution will not simply hamstring Palestinian leaders but also authorize them to negotiate such issues. On refugees, the earlier 2001 draft extended Palestinian citizenship to all Palestinians throughout the world and converted the Palestinian National Council (PNC) into an upper house of the parliament, representing the Palestinian diaspora. Most problematically, it included a clause affirming every Palestinian's right to return to his original "home" and not merely homeland, also stating that the right could not bedelegated, effectively preventing any negotiation on the issue. The 2003 draft retreats on these issues: citizenship is still extended to all Palestinians, but the PNC is converted from a full upper house to an advisory body. On refugees, the draft proclaims the right to return to the "State of Palestine" but enjoins the state to pursue their right to return to their original homes and villages or to receive compensation.

Borders proved so difficult that the 2003 draft proposes two possible alternatives: the first simply refers to "recognized borders" and to unspecified UN resolutions. The second suggestion specifically provides for the June 1967 borders. Regardless of which alternative is chosen, the draft requires any treaty affecting Palestinian land to obtain approval in a popular referendum.Islam: One of the most contentious issues—both domestically and internationally—has been the place of Islam. The 2003 draft proclaims, "Islam is the official religion in Palestine. Christianity and other heavenly religions receive sanctity and respect. The constitution guarantees to all citizens equality in rights and duties regardless of their religious beliefs." Further, "the principles of the Islamic shari`a are a principal source of legislation." This is coupled with very strong language on gender equality. The experience of other Arab countries suggests that the language on such matters is so general (with the exception of gender issues, where more specific phrasing is used) that the impact of these clauses would be restricted to the level of symbolism. It is less important how the constitution mentions Islamic law (though the references to the "principles" forming "a" source of law is relatively weak), and far more important how personal status law (which is based on religious sources) interprets and applies religious teachings. In this regard, it is important to note that Palestinians have been drafting a law of personal status, though the process has been extremely slow.

Background
The effort to draft a Palestinian constitution has seen sudden bursts of activity alternate with sustained lulls. In 1988 the Palestinian National Congress (representing Palestinians throughout the world) declared a Palestinian state and authorized a committee to begin work on drafting a constitution. That project began at a glacial pace but took on some urgency with the 1994 creation (under the Oslo Accords) of the Palestinian Authority (PA), governing Palestinians in the West Bank and Gaza. The newly-elected Legislative Council assumed responsibility for the project in 1996. Its product, the "Basic Law"—an interim constitutional document for the PA—was finished in 1997, but it was not approved by Yasir 'Arafat until 2002 and still has not been fully implemented.In 1999, the PLO's Central Committee authorized a wholly new and separate effort, this time not for an interim body but to accompany a declaration of statehood. Yasir `Arafat named cabinet minister Nabil Sha'th and a committee of legal figures to begin work. In 2001, the committee produced a draft, though it received little public attention in the midst of the Intifada.

In May 2002, reform of Palestinian institutions suddenly returned to the domestic and international agenda. At first, constitutional issues arose only in internal debates, but in June 2002, US President George W. Bush publicly called for a "new constitution," an empowered parliament, and "a new and different Palestinian leadership." Nabil Sha'th quickly responded by submitting a revised version of the 2001 draft constitution to the American leadership, but this modified document was stillborn: it did not respond to American concerns and had been modified outside the committee, seriously undercutting its legitimacy.

A more serious effort to revise the 2001 draft began in late 2002. The committee was reconvened, and its membership was widened to include political leaders and activists. Since December 2002, multiple drafts have been circulated among interested parties and experts. This final committee draft is now to be submitted to the PLO Central Committee and then presented for public comment. The committee hopes—and the constitution provides—for a public referendum to approve a final version. Since the document unabashedly presents itself as the constitution of a Palestinian state, such approval would be tantamount to a declaration of statehood.

Carnival of Justice: Military Commissions & Guantanamo Bay

Keith Petty — Fri, 23 May 2008 09:42:29 -0400

Every trip to Guantanamo Bay, Cuba (GTMO) brings with it a strange cocktail of emotions. The excitement of prosecuting before a historic military tribunal, the nervous energy when delivering an oral argument before the judge, and the dread of reading the inevitably negative headlines the following day are all part of the experience. But it seems that the commissions’ proceedings are merely a sideshow in this carnival-like atmosphere. As famously described by Binyam Mohammed at his arraignment in 2005, the second iteration of the military commissions were simply the “same circus, different clowns.”

Constitutional and Political Challenges Facing a New Iraqi Government

Feisal Istrabadi — Fri, 11 Feb 2005 12:00:00 -0500

The historic elections of January 30, 2005 set Iraq on the path todemocracy. However, the critical undertaking of creating a permanentconstitution that successfully addresses contentious questions like therole of Islam in governance, the Kurdish autonomy issue, and how Iraqis ofevery political and religious stripe can live together freely andpeacefully remains ahead. What will happen after all the votes arecounted and how will the constitutional process play out? Mr. FeisalIstrabadi, Iraq's deputy representative to the UN, played a pivotal role indrafting Iraq's Transitional Administrative Law and helped ensure theinclusion of principles such as freedom of speech and religion. Mr.Istrabadi will offer his perspectives on the necessity of building asuccessful constitutional framework and the political challenges that stand in the way.