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Oslo said it: Hamas and elections don't go together
By Akiva Eldar

The second Oslo agreement leaves no room for doubt: Hamas is not entitled to participate in the Palestinian Legislative Council elections. "The nomination of any candidates, parties or coalitions shall be refused, and such nomination or registration once made will be canceled," states Article II of Annex II, if they 1. "commit or advocate racism" or 2. "pursue the implementation of their aims by unlawful or non-democratic means."

In the Hamas covenant there is hardly a page free of racism. It is hard to find a single line that mentions law and democracy. At the Foreign Ministry, they say the problem is not a legal one at all and it is the government that has to inform Palestinian Authority Chairman Mahmoud Abbas (Abu Mazen) that Hamas and the elections don't go together. Yesterday, for the first time, following a Haaretz inquiry, Foreign Minister Silvan Shalom announced he would demand that the PA disqualify the Hamas list, and promised to enlist the European countries in this matter.

In this he joins Justice Minister Tzipi Livni. The Prime Minister's Bureau is maintaining its silence. Foreign Ministry lawyers have been warning for some time that the elections will afford the Hamas candidates immunity; the road map obligates Israel to allow candidates freedom of movement on the roads, including in East Jerusalem.


However, the Justice Ministry's legal opinion notes that the road map's section on building Palestinian institutions does not confine itself to proper elections and obligates the PA to carry out a comprehensive democratic reform. This includes establishing the rule of law and the principle of freedom, which in the eyes of Hamas are like eating pork during Ramadan.

The opinion of international law experts at the Justice Ministry enumerates the acts of terror and written incitement by Hamas, which calls for the destruction of Israel and the cancellation of all diplomatic agreements with it. The document points to contradictions between Hamas' deeds and platform, and European law, U.S. President George W. Bush's speeches and the declarations of the PA itself. It notes that the European Union's court has disqualified way more moderate political parties from membership in European Parliament. In recent years Spain and Turkey have disqualified parties tainted by verbal terror, and the European Court of Justice rejected the claims of these parties that their disqualification was contrary to the Treaty on European Union.

Livni expects that the European countries will exercise rules identical to those it exercises with regard to political parties in Europe: "Either weapons or elections." Livni says the postponement of the elections in the territories makes it possible to stop Hamas now from getting to the ballot box. She fears that after the disengagement, it will be harder to enlist international support for this. She has brought up the subject with senior European and United Nations representatives who have visited Israel and with heads of the U.S. Jewish organizations. The Zionist Organization of America has enlisted two members of Congress, who wrote to President Bush to pressure Abu Mazen until he orders Hamas to choose either elections and democracy, or terror and incitement. However, in these days of the disengagement, an organization that invites MK Aryeh Eldad of the National Union to speak at its annual convention is cause for suspicion in and of itself.

Ya'alon's version and the truth

After Sergeant Taysir al-Heib was convicted of killing British peace activist Tom Hurndall, his father, who came from Britain to see the verdict delivered, said he was worried about the "culture" in which the incident occurred. Anthony Hurndall spoke about an atmosphere "in which Israeli soldiers feel comfortable shooting for no justified reason." He took comfort in the fact that the soldier who was convicted of killing his son would have plenty of time to contemplate his crime behind iron bars.

The Abu Hijla family from Nablus was not granted even this small consolation. No one has paid for the death of the mother of the family. The military police's file on the investigation, which came into the hands of the family's attorney, casts a heavy shadow on the military justice system.

Here is a summary of the events:

October 2002: Shadin Abu Hijla, a 60-year-old peace activist, is shot and killed on October 11, in the courtyard of her home in the Rafadiyeh neighborhood, as she is embroidering. Her doctor husband and her son, a university lecturer, are lightly wounded. According to eyewitnesses, the Abu Hijlas were shot by an Israel Defense Forces soldier who got out of a military Jeep, knelt and fired toward the house.

December 2002: After an investigation at the scene, the commanders report that Abu Hijla had the bad luck of being in the trajectory of a stray bullet. The information that the family and an European Union representative, Alistair Crooke, possessed 14 cartridges collected from the street, comes to the chief of staff's attention. Lieutenant General Moshe Ya'alon orders the judge advocate general to hand the case to the military police for investigation.

June 2003: The IDF Spokesman's Office informs Haaretz that the military police investigation found that Abu Hijla was shot by an IDF unit patrolling Nablus to enforce the curfew; the unit noticed a man leaving a house in the city and shot toward the house's surrounding wall as a deterrent. The statement says that the chief of staff determined the unit had acted in accordance with the instructions in force at the time and therefore, "it is our obligation, as commanders, to give full backing." However, "as a conclusion drawn from the investigation findings, the chief of staff has ordered that surrounding walls outside houses no longer be considered a `natural harm shield'" (a barrier that ostensibly ensures the safety of passersby who have found themselves in the line of fire, behind the suspect).

That is to say, the soldier who aimed his weapon at Abu Hijla's house was acting in accordance with the instructions in force at the time. Abu Hijla died because of a faulty procedure.

February 2005: The judge advocate general orders a disciplinary (not criminal) trial for the regional brigade commander, who has in the meantime resigned from the IDF, and the company commander. The charge: deviating from the rules of engagement in force in that area.

July 2005: Attorney Hussein Abu Hussein of Umm al-Fahm, the Abu Hijla family's lawyer, obtains the investigation material, including statements from 10 of the soldiers in the unit that was in the area. All of the statements, which Haaretz has obtained, were taken on the morning of January 19, 2003. All of the soldiers denied that they had fired in the direction of the house. All of them do not remember who fired. Almost all of them stuck, word for word, to the following testimony: "In the briefing we received before we went out into the field, as well as in the past, the commanders stressed that a natural harm shield includes open territory and natural earth piles, not houses, not the surrounding walls of houses and not anything that could cause harm to houses." This is, in other words, the exact opposite of the chief of staff's version (the IDF Spokesman's Office: "The difference apparently stems from the fact that the chief of staff was referring to the initial clarifications that took place right after the incident and not to the findings of the investigative military police").

Furthermore, in none of the testimonies was it stated that the force was in any danger that compelled it to deviate from the instructions, or that the shooting was intended to stop a "wanted man" trying to escape. According to the platoon commander's testimony, when the patrol was in the area of the Abu Hijla home, "there were no violent disturbances or shooting from the direction of the home of the woman who was killed."

Question: If the soldiers spoke the truth to the investigators about the instructions concerning a "natural harm shield," why did the previous chief of staff decide that Abu Hijla had died of a faulty procedure, and why did he see fit to change it? Answer: Shadin Abu Hijla died because a Palestinian woman's life is cheap and no one pays for her death.

Determined not to investigate

No one has paid for the death of 11-year-old Maram al-Nahla of Nablus either. Ten months ago she was shot and killed. Eyewitnesses said that on September 15 last year, at about 5 A.M., a large military force burst into a number of houses on Al-Razi Street and imprisoned the inhabitants in their homes. The force surrounded the home of the Al-Kilani family, where six wanted men were hiding, and exchanges of fire ensued, lasting about an hour. At 10 A.M., when the shooting stopped, Maram came out into the street with her parents. In the film recording the removal of the bodies, the sound of a single shot is heard, apparently from the direction of the adjacent house, which was serving as an observation post for IDF soldiers. Immediately after, a woman is heard screaming. A news photographer at the scene focused his camera on her. In the photograph, the girl is seen being carried in the arms of her father and mother. She arrived at the hospital dead.

In November, B'Tselem, The Israeli Center for Human Rights in the Occupied Territories, requested that the judge advocate general order the military police to open an investigation. The negative reply ("There is no direct evidence that the child was hit by gunfire from IDF soldiers - this is a true fighting incident") came seven months later, in June 2005. Two years ago, following the procrastination in the investigation into the killing of Abu Hijla, Moshe Ya'alon announced, "It is necessary to avoid similar incidents in the future and to ensure that thorough and deep investigations are carried out, through which the IDF's aspiration and ability to arrive at the investigation of the truth will be proven."

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