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II. Background

January 2006 Elections

In January 2006, Hamas won Palestinian National Authority (PA) elections in Gaza and the West Bank, defeating President Mahmoud Abbas’s Fatah party, which had long dominated Palestinian politics and ruled the PA since its formation in 1994. Out of 132 seats in the Palestinian Legislative Council (PLC), Hamas won 74 (in addition to four by Hamas-supported independents), compared to 45 for Fatah.¹ Independent candidates and smaller parties split the remaining 13 seats.² Two months later, Hamas formed a government headed by Ismail Haniya as prime minister.

Citing Hamas’s refusal to recognize Israel, renounce violence, and accept the terms of previous agreements, Israel and the Middle East “Quartet” responded by imposing sanctions.³ Israel withheld US $50-60 million of tax revenue that it collected on behalf of the PA and severely restricted Palestinians’ freedom of movement, particularly into and out of the Gaza Strip. Over time it arrested dozens of Hamas officials, including ten ministers and 43 members of the PLC.⁴ Due to the arrests and political disagreements between Fatah and Hamas, the PLC has not convened with a quorum since February 2006.

After the elections, tension between Fatah and Hamas escalated quickly on the political and security fronts. Periodic clashes erupted between security forces and affiliated militias from both sides as attempts to form a coalition government failed. Hamas complained that security forces loyal to Fatah were not submitting themselves to the authority of the new interior minister. In April 2006, it announced the creation of a new security force called the Executive Force (Al-Quwwa al-Tanfiziyya), which it said was needed to supplement the police. President Abbas decried this step as the creation of a parallel police force, and urged Hamas to integrate its forces into official structures. Hamas refused and in January 2007, two days after Executive Force members killed a senior Fatah security official in Gaza, President Abbas declared the force illegal.⁵

On February 9, 2007, following Saudi mediation, Fatah and Hamas signed the Mecca Agreement under the auspices of King Abdullah Ben Abdul Aziz, in which they pledged to pursue dialogue and political pluralism and to form a unity government the following month, with Haniya remaining as prime minister and Fatah and others joining as ministers. The infighting and clashes resumed nevertheless and the newly formed unity government remained weak during the three months that it existed, from March to June 2007.

Israel and outside powers, especially the United States and European Union, exacerbated the divide between Fatah and Hamas by pressuring one side and bolstering the other, even during the brief unity government period, offering contacts and funds only to Fatah, other non-Hamas parties, President Abbas and the security forces under his control. In early 2007, the US announced more than $80 million in aid for Fatah security forces in the West Bank. Israel, meanwhile, tightened its closure of Gaza’s borders, over which it has near total control, including restrictions on the supply of electricity and fuel, in violation of international humanitarian law.⁶

Throughout April and May 2007, armed clashes between Hamas and Fatah security forces resumed in Gaza, with each side accusing the other of fomenting chaos to undermine the unity government. In early May, the politically independent interior minister Hani al-Qawasmeh resigned, saying he lacked the requisite authority. The fighting worsened, despite repeated attempts to establish ceasefires.

June 2007 Fighting

Clashes peaked in mid-June 2007, when Hamas forces seized control of Gaza’s security facilities and government buildings.⁷ For eight days the fighting was intense, and both sides engaged in serious violations of international humanitarian law, such as torturing and summarily executing captured and incapacitated fighters, including those inside hospitals, unnecessarily endangering civilians by fighting from populated areas, and blocking medical access to the injured.  Hamas security forces, including members of the Executive Force and the `Izz al-Din al-Qassam Brigades, shot several captured Fatah security members multiple times in the legs – a practice that continued over the following months (see two cases in this report of men from Gaza City).⁸ By the end of the battle on June 13, Hamas had taken control of all major security installations and most government institutions in the Gaza Strip.

In total, 161 Palestinians died during this period, including 41 civilians, according to the Palestinian Centre for Human Rights, among them seven children and 11 women. At least 700 were wounded.⁹ Despite the gravity of the abuses committed by both sides, neither Hamas nor Fatah authorities have made any apparent effort to investigate the crimes committed by forces under their control.

Two Authorities

On June 14, President Abbas dismissed Prime Minister Haniya, dissolved the National Unity Government, declared a state of emergency, and appointed an emergency government run by Salam Fayyad, a leader of the Third Way party, who is still prime minister in the West Bank today. He denounced Hamas for having staged a “coup.”

Experts in Palestinian law and independent members of the PLC have questioned the legality of the Fayyad government.¹⁰ According to the interim constitution, the Palestinian Basic Law, the president can dismiss a prime minister (article 45) but the dismissed government continues to function as a caretaker government until a new government is formed and receives a vote of confidence from an absolute majority of the Palestinian Legislative Council (article 67).¹¹ To date, the Hamas-majority PLC has not met to confirm the Fayyad government, largely due to the 43 Hamas members in Israeli detention. As such, Haniya’s cabinet should remain as a caretaker government (article 78).

Despite these legal concerns, Israel, the EU and the US welcomed Abbas’s decision, with US Secretary of State Condoleezza Rice saying Abbas had exercised his “lawful authority.”¹² As EU president, the German government said it “emphatically supports President Abbas’s decision, in keeping with the Palestinian Basic Law, to dismiss the government and to appoint a caretaker government for the Palestinian territories.”¹³

On June 16, 2007, Abbas issued a decree that formally declared the Executive Force and Hamas militias illegal because they engaged in “armed mutiny” and ordered punishment for anyone “proven to have any kind of relations or connections with these militias.”¹⁴ The decree set the tone for a crackdown against Hamas and its supporters in the West Bank that continues to this day.

Hamas rejected the emergency government and considers Ismail Haniya the legitimate prime minister to this day. It replaced Fatah and other government ministers in Gaza with its officials and refers to itself as the “dismissed government” or the “caretaker government.” Many journalists and analysts, as well as the United Nations, call it the “de facto government” in Gaza, which recognizes Hamas’s control in the territory.

As with the Fayyad government, experts question the legality of the Hamas government in Gaza. Although Hamas won the January 2006 PA elections, it unlawfully used its militia to seize control of government institutions. Regardless of their legality, however, the authorities in Gaza and the West Bank have both claimed legitimacy and exercise respective de facto internal control. As such, they should abide by Palestinian law and international human rights law.

The Ramallah-based authorities have continued to refuse recognition of the Hamas government in Gaza. They ordered a boycott of the security, judicial and other government sectors, ordering employees to stay home from work if they wanted to get paid. President Abbas and Fatah, along with the US and most European governments, demanded that Hamas relinquish control of Gaza. They have supported Israel’s border closures and unlawful restrictions on the supply of electricity and fuel, which amount to collective punishment under international law.

According to Palestinian security officials in the West Bank, since June 2007, Israel has assisted them in their common fight against Hamas.¹⁵ The cooperation has generated resentment among some Palestinians. According to one human rights activist Human Rights Watch interviewed, reflecting a common view among Palestinians in the West Bank, the forces under President Abbas are the “subcontractor of the occupation.”¹⁶

According to Israel and the US, Hamas has received funding, weapons, and training from Syria and Iran.¹⁷ A Fatah intelligence official has also pointed the finger at Iran.¹⁸ Hamas has rejected the claims. According to the US, Hamas also conducts fundraising in some Gulf countries, and receives donations from Palestinians around the world and from private donors in Arab states.¹⁹ Human Rights Watch cannot confirm these claims, but Iran has in the past offered to support the Hamas-run PA.²⁰ The leader of Hamas, Khalid Meshal, is currently based in Syria.

Consolidation and Control

Since June 2007, Hamas has consolidated its control and established a Gaza administration, filling the vacuum left by the Abbas-ordered boycott. Despite a lack of experience in running government affairs, it managed to reduce the crime and chaos endemic in 2006 and the first half of 2007.²¹

Hamas began by reorganizing the security forces under its control. Immediately after the fighting ended in June 2007, the armed wing of Hamas, the `Izz al-Din al-Qassam Brigades, began policing the Gaza Strip, making arrests and running detention centers, including the al-Mashtal facility in Gaza City previously run by the PA’s General Intelligence Service. As an armed group rather than an official law enforcement agency, under Palestinian law it had no power to arrest or detain. As documented in this report, both the Qassam Brigades and the Executive Force engaged in arbitrary detentions, torture and inhumane and degrading treatment of detainees, many of them affiliated or suspected of affiliation with Fatah security forces.

Under criticism for using the Qassam Brigades as an internal security force, in September 2007 Hamas created the Internal Security Force (ISF), which assumed control of the al-Mashtal facility. Hamas presented the ISF as a new force but lawyers, journalists and human rights activists in Gaza consistently told Human Rights Watch that most of its personnel came from the Qassam Brigades. In October 2007, Hamas dissolved the Executive Force, and absorbed its personnel into the police. Hamas appointed a former Fatah security officer, Tawfiq Jabber, as police chief, reporting to the minister of interior. In fact, the police and ISF were widely believed to be controlled by a senior Hamas official, Said Siyam, who served as minister of interior in the Hamas-led government from March 2006 to March 2007. In April 2008 Prime Minister Haniya again appointed him minister of interior.

Since June 2007, Hamas also has taken steps to restructure the judiciary, often in violation of Palestinian law. To replace those who left their jobs after the Abbas-ordered boycott, Hamas appointed politically loyal judges and prosecutors, who lack both experience and independence. Hamas claims they were forced to make these appointments to ensure the functioning of the judicial system after the boycott.

Despite the ceasefire between Israel and Hamas in June 2008, Palestinian armed groups have continued to fire rockets indiscriminately into civilian areas in Israel, and Hamas has declined to make them stop. These attacks are serious violations of international humanitarian law.²²

In the West Bank, security forces and militias controlled by Fatah, including the Fatah-allied Al-Aqsa Martyrs Brigades, began an offensive against suspected Hamas individuals, organizations, and media, determined to prevent a repetition of the Hamas takeover in Gaza. In the process, these forces committed numerous abuses, such as arbitrary detentions, torture, and assaults on private property. They arrested hundreds of people suspected of supporting Hamas, and released them only after they signed documents that they would sever ties with Hamas. To date, Human Rights Watch knows of no security force member who has been investigated or prosecuted for these unlawful acts.

Abuses by West Bank security forces have continued over the past year, with a special focus on Hamas and its supporters, real or suspected. The Preventive Security and General Intelligence Service have been most responsible for arbitrary detentions as well as ill-treatment and torture.

The struggle between Hamas and Fatah has had a major impact on Palestinian lives. For the first time since Israel occupied Gaza and the West Bank in 1967, more Palestinians in the occupied territory died in 2007 as a result of internal Palestinian fighting (at least 490) than from Israeli attacks (at least 396).²³ In Gaza alone, 454 people died in internal violence (188 of them in June), compared to 301 killed as a result of direct conflict with Israel.²⁴ The cleavage has paralyzed the Palestinian Legislative Council, allowing power to be concentrated in the respective executive powers, and blocking desperately needed legal reform.

The annual reports of PICCR (now ICHR) show the deterioration well. In 2007, the organization recorded nearly double the number of abuses from the previous year. Torture made the biggest jump, increasing from 52 cases in 2006 to 274 in 2007 (154 cases in Gaza and 120 in the West Bank). The ill-treatment of detainees increased from 104 reported cases in 2006 to 146 cases in 2007 (19 in Gaza and 127 in the West Bank).²⁵ Reports of violations in both Gaza and the West Bank declined in the first months of 2008, but it remains unclear whether this positive trend will continue throughout the year.

Mid-2008 saw potential for progress as Hamas and Fatah discussed possible reconciliation. On June 4, President Abbas announced the formation of a committee of senior Palestinian officials to prepare for “national dialogue” with Hamas and called for implementation of the Yemeni initiative.²⁶ Later that month, Israel and Hamas agreed to a six-month ceasefire after indirect negotiations brokered by Egypt and encouraged by the US.  The truce, which went into effect on June 19, requires Israel to cease military operations in Gaza and gradually lift the border closures in return for Hamas’s commitment to halt rocket fire from Gaza, end weapons smuggling into the territory, and take steps to free captured Israeli soldier Gilad Shalit.²⁷ As of early July, however, both sides had failed fully to respect the truce, with Israel shooting at Palestinian farmers trying to access their land in Gaza near the security fence and Hamas failing to stop armed groups from shooting rockets at civilian targets in Israel.²⁸