If anyone were to ask what has been the most complicating aspect of the Palestine/Israel conflict, most observers would perhaps say that the complete departure from international law as a context for all negotiations and agreements has kept this dispute alive for 60 years. It is the deliberate attempt to resolve issues that are as much legal as they are political, by negotiating the wants and desires of either side, agreements that in some cases actually violate international laws, that has made past agreements mostly meaningless, difficult to understand, unjust and never adhered to. Indeed many might argue that without a legal basis or context, most of the negotiated agreements such as the failed Oslo Accords were counter intuitive and could never have succeeded, since the entire premise of a negotiated settlement that would seek to rewrite or to undermine international law would at some point be rejected by a majority of people whose concept of justice has been shaped by centuries of legal philosophy, and no where is this more true than in the Arab/ Muslim world.
Whereas very few of the Arab or Muslim countries have adopted Shariah or Islamic law as their primary law, Muslims without doubt have internalized Islamic legal philosophy and our ideals of right and wrong, what is just and unjust, and what is good and bad are shaped by the Qur'an, the Seerah of the prophet Muhammad (sa) and also by hadith litertaure. The Islamic legal philosophy is so much a part of the Muslim and Arab culture, that when confronted with choices to be made between secular civil laws and Islamic laws, many will adopt the Islamic way with full conviction that the choice they have made is both right and just, in spite of the fact that the secular civil law might have given them some advantage. To atheists and those who do not believe that there is an overarching moral authority that sets laws for humanity, this idea may sound abstract, or even superstitious. Yet, when considered objectively, it becomes somewhat obvious that such faith in what are perceived as the laws of God are no more superstition ridden than belief in laws made by men who believe in God, or to abide by laws that have been inspired by religious or other sacred scriptures such as the Ten Commandments, Talmudic law, or even the legal philosophies of men like Thomas Aquinas. In other words, there is no escaping the fact that our modern ideas of law, and its objectives and ways are not necessarily modernized by a departure from our traditional beliefs. Modernization of law might be our acceptance of the idea that law and justice are not merely intellectual creations that lend themselves to utility and expediency. For our laws to have meaning for us, and to compel us, they must satisfy our sense of justice so that once defined, our laws become our way of life. When adhered to they become our guides, our inspiration, and also our guards against our passions and our imperfections.
It may not matter that groups of people have different laws, if we can agree that on some level, laws that are accepted by a majority of people as a legitimate law, and adopted by those people as their law, should be respected, and always taken into consideration. It seems that to do otherwise will cause us to continue to repeat the mistakes of the past that should have taught us by now, that no amount of imposition, whether it be through secular education, public censure and condemnation or isolation and criminalization, can remove the natural laws of justice from the heart of the human being, even if we are able to distort these laws with relativism, or to inject into the heart such dangerous poisons as racism, supremacism and Darwinism, which by definition is a fear of extinction due to imperfection.
When two groups that each have their own legal codes by which they live find themselves in a legal and political dispute, choosing a law to guide negotiations and to serve as a context for any subsequent agreements is necessary in my view. Both parties engaged in negotiations should first agree upon which law will be adopted as the guide for what is legal, not legal and legitimate or illegitimate in respect to identifying an authority, and the rights of that authority. This might be especially important when there are also political questions to be resolved. Since politics is primarily concerned with the distribution of power in relationships between people, we cannot escape the suggestion that any negotiations that involve politics must have a clearly defined and accepted legal dimension, and description of legitimate authority. The Palestine/Israel conflict is a prefect example of how we fail when we ignore the unique legal culture of groups, and their laws.
In respect to the Palestinian internal dispute between Hamas and Fatah, there is a need to recognize that Hamas is an Islamic organization. It has presented its ideals and activism to the international Muslim community through the prism of Islamic law and culture, and is accepted and loved by most Muslims, Arabs and others based upon this presentation. This means that Hamas is legitimized not only by the majority votes of the Palestinian people, who voted Hamas into political power. Hamas is also legitimized by popular international support of people of various religions, ethnicities and political affiliations, and it is accepted by these supporters as an Islamic organization, since it has never swayed in its claim of Islamic authenticism. It's demand that the world recognize the natural right of all people to resist genocide and to resist being ethnically cleansed from the land, and also to the right to exist is an appeal for legality, and not for merely political power.
Negotiations between Hamas and the secular Fatah movement, guided by the secular Egypt, that is already playing the role of Israeli facilitator in the illegal economic siege on Gaza imposed by Israel, will be complicated just as negotiations between the secular liberal Fatah and the Talmudic Judaic society that calls itself Israel have complicated and perplexed every opportunity for peace between Palestine and Israel.
In my humble opinion, Hamas and Fatah, before seeking to reach any substantive agreement on reconciliation, must assert the relevance and the legitimacy of their own Basic Law, and the tenets of that law, including the legal timing for the end of Abbas's term as President, without exception. The negotiations should not become a pretext for undermining the Basic Law, the very same Basic Law that confers legitimacy upon Hamas, not only as a political party, but also as an organized Palestinian resistance, organized for the purpose of liberating the Palestinian lands under illegal occupation, and defending those lands that are not, and most importantly the Palestinian people themselves. International law and the Palestinian Law, which does not violate in any way the Islamic law, nor insults the Islamic sensibilities and legal culture of the Muslim people, should be the guiding laws and context within which a Palestinian reconciliation is realized.
Just as over the years, Israel has used the arbitrary nature of negotiated settlements to stave off peace until it achieves the advantage in facts on the ground, and until it has beaten down its adversary's spirit for resistance and made opposition appear hopeless, negotiated agreements about power sharing and reconciliation between Hamas and Fatah have this same potential for abuse unless they are guided by the Palestinian Basic law, and Islamic legal culture. Any terms of reconciliation or power sharing that offends the moral and legal sensibilities of the Palestinian people and the international Muslim community are not likely to succeed.
The believing people must always keep in mind the promise found in the Qur'an in Chapter 24, verse 55, where God says,
“ God has promised to those among you who believe and work righteous deeds, that He (God) will of a surety, grant them in the land, inheritance as He granted it to those before them. That He (God) will establish in authority their religion, (law and culture) the one which He (God) has chosen for them. And that He (God) will change their state, after the fear in which they lived, to one of security and peace; “They will worship God alone, and not associate anything with God. If any do reject faith after this, they are rebellious and wicked.”
So establish regular prayer and give regularly in charity, and obey the prophet that you may receive mercy.
Never think that the unbelievers are going to frustrate God's plan on earth. Their abode is the fire, and it is indeed an evil refuge.”