العودة إلى تفاصيل المؤلَّف Criminals or Martyrs? Let the Courts Decide!-British Colonial Legacy in Palestine and the Criminalization of Resistance

Criminals or Martyrs? Let the Courts Decide!-British Colonial Legacy in Palestine and the Criminalization of Resistance

Criminals or Martyrs? Let the Courts Decide!-British Colonial Legacy in Palestine and the Criminalization of Resistance

Rana Barakat

Abstract

This article takes an example from the volatile history from the mandate period in Palestine (1919-1948) to show how the political legacy of the colonization of Palestine has formed the basis, in part, of “criminal law” and its use as a tool in this process of the construction of the matrix of colonial rule in Palestine. In the wake of the Buraq/Wailing Wall Revolt in 1929, the British introduced a new legal process in an effort to preserve their control of Palestine and put down Arab resistance to their rule. This article explains how the British constructed a system of laws and legal procedures during their colonial tenure under the Mandate of Palestine that were both reactionary and foundational in all that followed both within the context of British presence in Palestine and in how this relatively short colonial tenure resonated well beyond its historic tenure. By providing a close reading of the British methods and procedures that, at the time, were part of a concerted effort to control a strategic colonial outpost, this article shows how the law was manipulated as a means of control and, subsequently contributed to the ultimate failure of their rule. In an effort to suppress a national movement, the British manipulated their own version of a localized judicial system, creating a criminalizing process that is still used as a major means of control over the indigenous Palestinian Arab

population nearly a century later.

Palestine   Colonial Rule   British Mandate   Judicial System   Criminals   Court

Keywords:
  • Palestine

schoolchildren, and the story of their sacrifice is nothing short of legend in popular memory.2 The details of their story, or that of the revolt they were participants in, however, is often lost within the larger national Palestinian narrative. How did these men become martyrs? That is, how and why were they killed, and how did the use of the colonial law determine the outcome of this small but significant phase in Palestinian history? By focusing on the political and legal aspects of this volatile episode, this article explores how the British constructed a system of laws and legal procedures during their colonial tenure under the

Rana Barakat3

Introduction

On June 17, 1930, British prison guards in the northern city of Acre led three Palestinian men to the executioner’s noose, the ultimate punishment determined by the colonial law of British-controlled mandate Palestine. The story of these three men— Ata al Zir, Mohammad Jamjoum and Foud Hijazi— is a profoundly important part of the history of Palestinian Arab accounts of martyrdom and national sacrifice. The legacy of these men looms large in popular Palestinian history. Though British and Zionist historiography followed the colonizer’s lead, painting them as irrational murderers, popular Palestinian history has memorialized these men as celebrated martyrs. Their names are memorized by

  1. See Ghassan Kanafani. Adab al - Muqawamah fi Filastin al - Muhtallah , 1948 - 1966. Beirut: Dar al - Adab , 1966 ; Barbara Harlow , Resistance Literature. Chicago. Her research focuses on the social history of Jerusalem , colonialism , and revolutionary social movements. She can be reached at: rnbarakat @ birzeit. edu. New York: Routledge , 1987.

work of Michel Foucault and Giorgio Agamben, these scholars have shown that colonial power and control have been partially organized through the imagination and implementation of law.4 Echoing this theoretical framework, scholars of law in Palestine/Israel have dutifully shown how criminalizing resistance has been an effective tool for the Zionist settler-colonial state. Most notably, Adalah–the Legal Center for Arab Minority Rights in Israel–produced two issues of the Adalah Review in 2002 and 2009 devoted to the rhetorical and the real implications of this topic in the violent colonial mire of occupied Palestine.5 These thoughtful and meticulously executed contributions show the incredibly insidious nature of colonial power in the arena of law. This paper, however, goes further back in time and offers a humble example of the unique process undertaken during the British colonization of Palestine during the mandate period. The colonial forces employed within its arsenal of tools a juridical process to control their colony and reinforce a particular and effective method of power that forms the basis of these echoes in the contemporary Palestinian-Israeli context. In the wake of the Buraq/Wailing Wall Revolt, the British introduced a new legal process in an effort to preserve their control of Palestine and suppress Arab resistance to their rule. Instead of dissipating a national pulse that came to a full brew in the wake of the revolt, these new laws and procedures strengthened it and further exposed British colonial vulnerabilities. This new system, moreover, served as part of the historical foundation for the on-going colonial criminalization of resistance.6Mandate of Palestine. These were both reactionary and foundational within the context of British presence in Palestine and allowed this relatively short colonial tenure to resonate well beyond its limited historic time. Following the lead of scholars of settler-colonialism who have understood the construction of law as a means of colonial power, and in the pursuit of understanding Patrick Wolfe’s concept of “colonialism as a structure, not an event,” this paper examines an event resulting from the colonizer’s ability to criminalize resistance.7 By providing a close reading of the British methods and procedures that were part of a concerted effort to control a strategic colonial outpost, this article demonstrates how the law was manipulated as a means of control and, subsequently, contributed to the ultimate failure of their rule. In an effort to suppress a national movement, the British manipulated their own version of a localized judicial system, creating a criminalizing process that, nearly a century later, is still used as a major means of control over the indigenous Palestinian Arab population. The political legacy of Palestine’s colonization during the mandate period (1919-1948) has formed the basis, in part, of “criminal law” and its use as a tool in constructing the matrix of colonial rule. A great deal has been written about law as a formative tool in the production of the colonial as well as the post-colonial nation.8 In particular, the use of law in a constitutional (state-based) colonial state, and in the various manipulations that precede and follow the construction of such a state, has been of great interest to scholars of colonialism. Drawing on the

  1. Patrick Wolfe , “ Settler Colonialism and the Elimination of the Native ,” Journal of Genocide Research , 2006. For further information about the construction of criminal codes in the colonial and imperial context see: Sally Engle Merry , Colonizing Hawaii: The Cultural Power of Law. Princeton: Princeton University Press , 2000. For a useful example of how colonial justice seeks to preserve order – even an unjust and dysfunctional one see the useful collection regarding colonial law in Australia edited by Dirk Moses: Genocide and settler society: Frontier violence and stolen Indigenous children in Australian history , New
  2. The “ post - colonial ” context must , of course , be qualified in the case of Palestine / Israel ; though the British rule ended with the end of the Mandate in 1948 ,
  3. Though Foucault in particular did not thoroughly discuss the colonial context , these authors did. Timothy Mitchell in particular has shown that in order to both capture the mind and body of a colonized population , the colonial government in Egypt used the liberal constructs of modern law to build institutions of governance and control that both organized and consolidated colonial power within a powerful state. See Timothy Mitchell , Colonising Egypt. Berkeley: University of California Press , 1991 and Timothy Mitchell , Rule of Experts: Egypt , Techno - Politics , Modernity. Berkeley: University of California Press , 2002.
  4. Adalah ’ s Review – Law and Violence. Volume 2 , Summer 2002 , http:// adalah. org / Public / files / English / Publications / Review / 3 / Adalah - Review - V 3 - Summer - 2002 - Law - and - Violence. pdf. Also see Adalah ’ s Review – On Criminization. Volume 5 , Spring 2009 , http:// adalah. org / Public / files / English / Publications /
  5. See Leslie Sebba. “ The Creation and Evolution of Criminal Law in Colonial and Post - Colonial Societies ,” Crime , History , and Societies 3 , No. 1 (1999), York: Berghahn Books ; 2005. thus ending a direct European colonial involvement , it is still very much a continuing colonial context under Zionist settler - colonial rule in occupied Palestine. Review / 5 / Adalahs - Review - v 5 - Spring 2009 - On - Criminalization. pdf. Accessed 15 August 2013. pages 71  -  91. Though the definition of post - colonial is very much problematic in the context of Palestine and Israel as a continuing colonial situation.

control, the European-based Zionist movement also established a stronghold within the mandate to add a European settler-colonial movement into the colonial mix.9 Essentially, the newly established British administration in Palestine not only ruled over the indigenous Arab population, but also facilitated, and at times tried to control, the state-building process of an immigrant Jewish population. This combination led to a precarious and often violent history for a fight over control of politics and the land. Though this colonial presence engendered resistance from the beginning, the Buraq Revolt is a historical watershed moment as a major episode of sustained, nation-wide resistance that began a more volatile phase of mandate rule.10 Beginning in Jerusalem at the symbolic epicenter of the Buraq/Wailing Wall in August 1929, the revolt quickly spread to other cities and towns throughout Palestine. Over the course of two weeks, 116 Arabs and 133 Jews were killed as rioting raged throughout major towns from Safad in the north to Hebron in the south. Though the conflict specifically related to Muslim and Jewish claims to the holy wall had been building for more than a year, the initial sectarian tensions were merely a symptom of the struggle between competing national identities.11As the riots spread beyond Jerusalem, the British Palestine police force was quickly overwhelmed and ill-prepared for the indigenous revolt. The high commissioner’s office immediately requested military assistance and the revolt was met with great force and brutal measures, including an extraordinary number of arrests and the subsequent establishment of emergency riots courts.

Background – Colonial Law and Palestine

In general, colonial law is a well-explored field, and the evolution of British colonial legal structures and juridical maneuvers throughout the empire, specifically, is a rich discourse.12 British Mandate Palestine constituted a unique case in modern colonial history. It was a product of post-World War I agreements to divide former enemy territory, in this case the Ottoman Empire. It was also part of an attempt by the newly constructed vision of an “international community”—in the form of the League of Nations— to supervise the mandate under the guise of a national transition. Under the principles of the Covenant of the League of Nations, European powers in their capacity as Mandate governments were required to create and foster local state structures in anticipation of a movement toward independent statehood. Specifically, Article 22 of the League of Nations formed the ideological and practical foundation of the Mandate structure. Thus, the Mandatory powers were entrusted with the “tutelage” of local populations in the advancement toward independence. Article 22 explicitly stated, “certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.”13Though the British along with the French established these type of “Class A” mandates throughout the Arab east (the contemporary states of Lebanon, Syria, Jordan, Palestine/Israel, and Iraq), Palestine was a unique phenomenon. In addition to direct British

  1. Nasser Hussain , The Jurisprudence of Emergency: Colonialism and the Rule of Law , Ann Arbor: University of Michigan Press , 2003 ; Markus Dirk Dubber , “ The Historical Analysis of Criminal Codes ,” Law and History Review 18 (2000), pages 433 - 440 ; J. J. R. Collingwood , Criminal Law of the East and Central Africa , London: Sweet and Maxwell , 1967 ; Maurice Lang , Codification in the British Empire and America , Amsterdam: H. J. Paris , 1924 ; Radhika Singha , A Despotism of Law: Crime and Justice in Early Colonial India. Delhi: Oxford University Press , 1999 ; Elizabeth Kolsky , “ Codification and the Rule of Colonial Difference: Criminal Procedure in British India ,” Law and History Review 23 , No. 3 (Fall 2005), pages 631 - 683 ; Fazlur Rahman , “ A Survey of Modernization
  2. The Covenant of the League of Nations re - printed in The Israel - Arab Reader: a Documentary History of the Middle East Conflict , 6 th edition , Walter
  3. For more on the mandate see for example: Khalidi , The Iron Cage , 2006 ; Matthews , Confronting an Empire , Constructing a Nation , 2006 ; Segev , One
  4. For a complete analysis of the Buraq Revolt see: Barakat , Rana. “ Thawrat Al Buraq in British Mandate Palestine: Jerusalem , Mass Mobilization and of Muslim Family Law ,” International Journal of Middle East Studies , No. 11 (1980), pages 451  -  465. Laqueur and Barry Rubin , eds. (New York: Penguin Books , 2001), pages 30  -  36. Palestine Complete , 2000 ; Lesch , Arab Politics in Palestine , 1979. Colonial Politics , 1928 - 1930 ,” PhD. Dissertation , University of Chicago , 2007.
  5. For more on the Wall controversy in particular see: Mattar ,”‘ The Role of the Mufti of Jerusalem ,” June 1983 ; Lundsten “ Wall Politics ,” pp. 3  -  27.

(1929), or the Courts Amendment Ordinance, only British judges were to try the cases, excluding judges of Palestinian nationality, both Arab and Jew. The ordinance also introduced a fast track appellate process. These special procedures, however, achieved the opposite results from what the British desired. In their effort to overcome their incompetency in governance, the British suppressed and ignored the underlying root causes, thus exacerbating the general sense of Arab resentment in the wake of the riots. Prior to the special rules established for the riot courts, criminal disputes were generally tried in local magistrate courts staffed by British, Jewish, and Arab magistrates.14 According to the Courts Ordinance Act (1924), in the normal composition of a Court of Criminal Assize, which tried offences punishable with death, the chief justice or a British judge of the Supreme Court, and the British president along with two other judges of the district court sat to hear the trial. Of these four judges two were British and two were Palestinian (Arab or Jewish). The Courts Amendment Ordinance created in the wake of the riots provided that the Court of Criminal Assize consist of just two British judges.15 The new ordinance amended the process in the appellate procedure as well.16 In addition to the fast track nature of the appeals process afforded the criminal trials related to the riots, the appeals were brought forth from the special Court of Criminal Assize, to the Supreme Court. This acted as the appeals court, composed of three judges who should have been sourced from outside the original Assize Court where the initial decision was passed.17

Colonial Justice under Mandate Rule - Composition of the Courts and the Law

As in other forms of their local governing philosophy, the British Mandate established a justice system that combined both indigenous and British forms of legal systems. Over the course of Mandate rule, the country’s legal system underwent a process of transformation, combining locally prevalent Islamic and French norms with English common-law elements in a process often referred to as “Anglicization.” The result of this process, as described by the first Attorney General in Mandate Palestine, Norman Bentwich, was “a mosaic [with] a pattern made up of many legal pebbles: Ottoman, Muslim, French, Jewish and, above all, English.”18 As in other aspects of their mandated colonial rule, the British attempted to retain the previously existing Ottoman judicial system19 as their status quo. While the British retained a degree of Ottoman Law, they also amended these laws over the three decades of their rule so that ultimately, English common law dominated the system.20 More importantly, British political demands informed the process and means by which their justice was exercised. These political demands dominated the construction of criminal law in the case of the riots. In spite of British claims that they maintained the structure of the status quo, the changes that occurred to try the criminal cases relating to the riots constructed a new colonial concept of “political justice.” After his hasty return to Palestine in light of the riots, High Commissioner John Chancellor issued a statement on September 4, 1929 that partially explained the style and substance of the courts that would be set up to try the “criminal” cases arising from the riots. According to Ordinance Number 31

  1. Norman Bentwich and Helen Bentwich , Mandate memories: 1918  -  1948 (London: Hogarth , 1965) p. 201. regarding criminal , commercial , and procedural processes ; in the case of family law , the law of Palestine ’ s religious communities prevailed. thus manipulating juridical process to further colonial and imperial ends. (see Merry , Colonizing Hawaii.)
  2. Ottoman Law was a combination of religious Islamic law , and , as a result of late Ottoman reforms , a number of codes inspired by the Napoleonic code
  3. This process was common in colonial contexts and used “ law ” as part of the civilization mission claiming to bring colonized populations into “ modernity ,”
  4. For a complete discussion of state courts in the Mandate period see: Likhovski , Law and Identity in Mandate Palestine. pp. 21  -  45.
  5. Disturbances , Death Sentences , Part I , pages 22 - 35 , The National Archives of the UK / Colonial Office (TNA / CO) 733 / 180 / 6. hearing an appeal from a Court of Assize , but normally the court was composed of five judges (both British and Palestinian). defy logic that a small place like Palestine would have enough British judges to prevent this duplication. [TNA / CO 733 / 180 / 6 , page 25.]
  6. The criminal procedure laid down by the Trial Upon Information Ordinance in 1924 provided for an appeal to the Supreme Court from any sentence exceeding one year ’ s imprisonment. In the case of a sentence of death , the appeal was automatic. There was not a fixed composition of the Supreme Court
  7. In the course of the trials , however , this would not be the case. Bentwich argued that to complete the process in a quick and efficient manner , it would

the Criminal Law Amendment Ordinance (1927). Especially important, with reference to the death penalty, were Articles 169 and 170, which explained that only under the circumstances of clear premeditation could the defendant be sentenced to death.21 The Criminal Law Amendment Ordinance also adopted English rule with regards to principles and accessories of a crime, essentially extending the category of “persons party to an offence” to include those who had committed the actual crime and those who in any way enabled, knew about, or assisted in the general carrying out of the offence.22 This was an important criterion in trying those accused of murder in the riots, for even if the prosecution could not find factual evidence on those accused, their participation in the riots would be sufficient grounds for a guilty verdict. In this way, the political component of the riots was effectively criminalized within the general category of mass mob violence. Moreover, as we shall soon see, this played a fundamental part in the High Commissioner John Chancellor’s final political decision to uphold the death penalty for the three Arab men executed, a decision based on their role as “ring leaders” of the mass protests in Hebron and Safad. Through this specially constructed legal process, three courts were set up in Jerusalem, Haifa, and Jaffa. Over 700 Arabs were tried for offences in the riots, as were 160 Jews. As a result, a total of 124 Arabs were charged with murder, with 55 found guilty and 25 condemned to death. A further 50 were charged with attempted murder, 17 of whom were found guilty, in a addition to 150 Arabs convicted of looting and arson and 219 for minor offences. In contrast, 70 Jews were charged with murder, with two found guilty and sentenced to death. A further 39 Jews charged with attempted murder, one of whom was found guilty, and seven more Jews were convicted of looting and nine others of minor offences related to their behavior during the riots.23With the exclusion of local judges from the appellate process, it seemed that, by removing a local element or influence, the British felt they could guarantee a process void of politics. This obvious attempt to superficially remove the politics from the proceedings colored the course of the general trial process. The British administration clearly believed that focusing on the violence as criminal acts would “sanitize” the process. In effect, however, they introduced a new colonial construct to Palestine, which resonated well beyond the Buraq moment, when they attempted to, at best, ignore or, at worst, suppress the obvious political implications of the Arab riots. The Association of Arab Lawyers in Jerusalem issued a critical report of the “riot courts” on October 11 as the criminal process was underway.24 This report listed seven primary objections to the new criminal procedures. The report formalized a complaint that the proclamation issued by the high commissioner on September 1 tainted the environment and biased the courts against Arabs. Moreover, the lawyers documented a dangerous anti-Arab prejudice that was, in their words, “a huge denial of Arab rights throughout Palestine” and created an insurmountable obstacle to the progress of the process.25 The lawyers further noted that the speed of the arrests and trials were major obstructions in the pursuit of any kind of justice. They also claimed that the truncated courts set up in haste showed no respect for the law, and the newly constructed courts went out of their way to disgrace Arab defense lawyers, further complicating their work. The report concluded: “For all these reasons, [we] issue these complaints on behalf of the Arab population of Palestine and urge the Government to be conscious of their duties towards justice.”26 In spite of this firm Arab rejection of the process, the criminal courts proceeded with this method. The criminal law enforced in Palestine was based on the Ottoman Penal Code with significant changes made by the Mandate government, particularly

  1. This report was reproduced in Filastin on October 15 , 1929.
  2. Ibid. legacy in Palestinian history , Musa al - Alami was one of the prosecuting attorney ’ s during the first phase of the trials in Palestine.
  3. Ibid. Because the report was produced in Jerusalem , Awni Abd al - Hadi most likely contributed greatly to its production. Abd al - Hadi also later led the defense teams of a majority of the Arab defendants in the initial trials and contributed to their appellate petitions. Ironically , a fellow lawyer with a nationalist
  4. “ Norman Bentwich ’ s report to the appellate court in London ,” pages 11  -  15. TNA / CO 733 / 180 / 6 / ff 33.
  5. Ibid.
  6. Norman Bentwich. England in Palestine. London: Kegan Paul , Trench , Trubner , an Co. Ltd , 1932. p. 203.

order.27 This was in stark contrast to the realizations Chancellor expressed in his internal communications, where he and others in the administration expressed their frustration with the untenable political position of promoting one national struggle over another. First, the government successfully limited the mandate of the Shaw Commission, thereby nullifying any real political discussions in the work of the committee and its final report. Additionally, the constructed process by which the government created the new criminal process described above further consolidated the government’s public aim to marginalize the riots. Though they controlled every aspect of the process, Chancellor’s administration could not control the long lasting effects of this criminal process. The behavior of the British, as judges and executors, both reflected a contemporary British ethos towards dealing with the riots, and provided the symbols that served as a legacy of the revolt. Through the newly established courts, the local government tried hundreds of men for crimes committed in different cities throughout the country. The courts that condemned these men were established for the express purpose of further suppressing the political motivations of the riots and establishing the quickest construct of “justice” the government could create to reinforce their control of the country. As in his initial communiqué, described by Arab commentators as the “proclamation of blame,” Arabs responded with similar skepticism to Chancellor’s second proclamation. In spite of the British attempt to disguise the politics with a broad stroke of juridical “justice,” local commentators understood the government’s intentions to further suppress Arab opposition to the colonization of Palestine under the pretext of criminal courts. A front-page article in the widely circulated Jaffa-based Arab language newspaper Filastin doubted British notions of justice in light of their behavior in the riots. Though Chancellor claimed otherwise, the author of this article concluded before the process began that

The Criminalization of the Riots

The British High Commissioner of Palestine John Chancellor followed his initial public declaration, on September 1, in the immediate aftermath of the Buraq Revolt with another proclamation three days later. He stated that the government would pursue all those who violated the rule of law during the riots. He explicitly disclosed that all criminals, both Jewish and Arab suspects, were subject to this process.28This proclamation, in part, responded to the local and regional criticisms of his initial bombast where he accused only Arabs of harming public security.29More importantly, however, it was a part of an overall British effort to set the guidelines for the next phase of the riots’ aftermath and their future policy in dealing with Palestinian Arab political protest solely as acts of criminal violence, ignoring or suppressing any political element to the protest. This statement incorporated an announcement from the colonial secretary that explained the mission of the assigned Commission of Inquiry to look into the riots, to be led by Walter Shaw. The commission’s terms of reference were greatly contested within the colonial office. In the end, those who advocated a limited mandate won out, whereby the commission was ordered to look into the “immediate causes which led to the recent outbreaks.”30 Larger political issues were not to be discussed, and the commission was told not to engage with major policy issues in its final report. The implications of the boundaries of this construct, moreover, were mirrored in the description of the criminal procedures to try and convict those who stood accused of “murder and mayhem” following the riots. In the Courts (Amendment) Ordinance enacted one day earlier, Chancellor formally instructed the theater to try the “offenders without distinction of race or creed”. This new law created the system by which the British would achieve “colonial justice” in their formal criminalization of the riots. The Chancellor administration’s public face painted the riots as nothing more than unmotivated acts of barbaric violence and violations against public

  1. The Arab Executive Committee , along with the Mufti and his colleagues , as well as political leaders in various Arab capitals , including Damascus , issued formal statements of complaint about the Chancellor ’ s proclamation.
  2. Kayyali , Palestine: a Modern History , pp. 148 - 151 ; Kolinsky , Law , Order and Riots pp. 49 - 58 ; Porath , The Emergence of National Movement , pp. 3  -  8.
  3. “ Williams memo , 4 September 1929 ”. Commission and Inquiry. TNA / CO / 733 / 176 / 2.
  4. John Chancellor Papers , Rhodes House , Oxford University , Box 11 , file 4 , ff 89  -  90.

justice] and would support the criminal policies…of the destruction of a people and a nation.”31 In spite of British efforts to construct a judicial process for the riots devoid of politics, because the riots were by very nature politically motivated, they could not create a system outside of Palestine’s political realities.

the lawyer asked if he knew that in August the Jews interfered with the Buraq/Wailing Wall in reference to Jewish provocations at the Wall, but again, before the witness could answer, the court disallowed the question.32 Without the ability to introduce a political dimension to the cases, the defense turned to the next obvious method—questioning the process. During the original court hearings in Palestine, the local defense teams constructed their defense by questioning elements of the law. In the appellate process, they turned their focus onto the process constructed in the wake of the riots. The defense representing the Arab suspects then questioned the hastily constructed nature of the courts and the loose application of local law. Not surprisingly, in all seven cases, the defense challenged the prosecution regarding the idea of “premeditation”. The appellate plea to the Privy Council in the case of Mustafa Ahmad Deblis vs the Attorney General was a good example of this argument.33 In particular, the defense argued that the distinction between premeditation and murder in Ottoman Law differed from English Law; according to Ottoman Law, “murder with premeditation is only committed by one who kills with deliberate intention, having had time in which to resolve upon, reflect upon, and finally to execute “[British] prisons and trials in Palestine are only intended for Arabs…the real victims of so-called British justice.”34 In an open, unsigned letter published in the Haifa based newspaper al-Karmil , the author mocked the use of the word “justice” by a government that blamed the victims. He stated that “there is no government [that truly cares about

The Trials and Appeals: Politics of the Death Penalty

Seven separate trials resulted in the death penalties of the Arab suspects over the course of the fall and winter of 1929 - 1930.35 All of the cases dealt with riots in the cities of Hebron and Safad on August 24 and August 29, respectively. Throughout the entire process, the defense was not allowed to submit any material or conduct any questioning that put the riots in a political perspective. In order to remove the politics, the administration hoped that treating the Arab defendants solely as criminals would work to suppress the reality driving the riots. For instance, in the Court of Criminal Assize’s trial of three men from Safad, the court quickly struck down any kind of political insinuation.36 In this case, like in the others, as soon as any kind of political context was introduced, the court objected under the rule that the introduction of political matters was inadmissible. Even simple questions went unanswered. For example, the defense tried to draw a picture of the situation in Safad during the week between August 23 and August 29. The advocate for the defense interrogated a local character witness—Shaykh Ali Salah al-Din, a local religious teacher in the government school. The lawyer asked if there was ill feeling against the Jews before the war and the Balfour Declaration, but the court disallowed the question before the witness could answer. Then,

  1. “ Innocents ,” Filastin , September 12 , 1929.
  2. “ A Path Towards Peace ?” al - Karmil , September 14 , 1929. when the three Arabs were executed , Chancellor later reduced his charges before his appellate process completed. 31  -  63. TNA / CO 733 / 181 / 3.
  3. The eighth trial of the lone Jewish suspect tried with the result of the death penalty was the case of Yusuf Mizrahi Orfali. While his case was still pending
  4. Transcript of the Court of Criminal Assize trial of Ahmad Jaber al - Khatib , Aref Tawfiq Ighnaym , and Nayef Tawfiq Ighnaym (October 18 , 1929), pp.
  5. Ibid., p. 62. Palestine on 2 December.
  6. This was the one trial that was conducted without multiple defendants originally tried in the Court of Criminal Assize under the ruling of Justices Corrie and Litt who found the defendant guilty of killing with premeditation and sentenced him to death on 5 November 1929 under Article 170 of the Ottoman Penal Code and Section 3 (1)(b) and Section 9 of the Criminal Law Amendment Ordinance No. 2 of 1927. This decision was upheld in the Supreme Court of

the defense argued that the British administration could not convict and execute men on grounds not established within Ottoman Law. The petitioners argued that a gross “denial of natural justice” resulted in the convictions of these men.37 In addition to the complaint that the courts’ process and judgments were not respectful of local law, the English lawyer for the defense, Douglas Pitt, claimed that none of these men would have been found guilty “if their cases had been dealt with according to the natural justice and the laws of their country”.38 Pitt claimed that both the drastic change in the composition of the courts, and the complete exclusion of local judges affected the “organic” connection the law had with the local populations. This disconnect, moreover, led to the grave misinterpretation of justice on the part of the riot courts. He explained, “If people are rioting and looting and smashing, there is sure to be some killing… [but] premeditation implies you thought about it – and logically, rioting cannot engender that thought process.”39 He went on to further chastise the process, “it is one thing to decide a question of law wrongly, although that is bad enough; but it is another thing to decide a question of law so wrongly that you are really ceasing to administer the law of the country at all.”40 Implicitly yet forcefully, this argument questioned the entire process the local administration hastily constructed to legally suppress the riots, and, by extension, the nature of the administration itself. Before the judges of the Privy Council, the advocate for the defense further questioned the validity of the legal process: that intention”.41 The defense further argued that the violence was a result of spontaneous riots, which, by their very definition, precluded any form of premeditation. The argument read: The homicides in this case are a part of a series that took place in Safad during the civil commotion of the 29th [of August] which arose as a result of religious frenzy arising out of the differences between Arab Mohammedans and Jews. In the absence of any evidence established that the civil commotion was the result of a pre-organized and premeditated intention on the part of the Arabs to attack and kill the Jews, it is submitted that according to Ottoman Law the homicides that took place were not premeditated.42Regardless of the specific details of this particular case, this argument around “premeditation” generally reflected the approach of the various defense teams of the accused Arabs. In another petition to the Privy Council for the defense of a group of men from Safad, including Fuad Hijazi, who was eventually executed, the petition once again argued that under a correct application of Ottoman Law, the defendants acted in an atmosphere of “religious frenzy arising out of differences between Arab Mohammedans and Jews.”43 This same basic formula was used in the appellate defense of Arab suspects from Hebron, where the events of August 24 were described as “spontaneous…civil commotion … [and] not the result of a pre-organized and premeditated intention on the part of Arabs to kill Jews.”44In the oral arguments in front of the Privy Council in London, this same trend arose as the attorneys for

  1. TNA / CO 733 / 180 / 6 , pp. 56 - 61 , from the text of the defense application to the Privy Council.
  2. Ibid. (composed of Justices Sir Michael McDonnell , FH Baker and R. Copeland). (composed of Senior Puisne Judge , Justice Corrie , and Justices Tute and Copland) on December 5 , 1929. death penalty). (For the petitioners: DN Pritt , Horace Douglas , and Abacarius Bey.) in every stage of this process.
  3. TNA / CO 733 / 180 / 6 , pages 48  -  51. In the case of Rashid Salim Haj Darwish , Mohammad Salim Zeinab , Fuad Hassan Hijazi , Jamal Salim Khloi , Ali Salim Haj Darwish , Tawfiq Abeid Ahmad , Rashid Mohammad Khartabil , and Ahmed Saleh Kilani vs the Attorney General – convicted of murder with the death penalty on November 29 , 1929 in the Court of Criminal Assize (composed of Justices Corrie and Litt) and upheld in the Supreme Court on February 10 , 1930
  4. Ibid , pages 69  -  74. In the case of Abdul Jawad Farah and Ata Ahmad al - Zir vs the Attorney General – convicted and given the death penalty by the Criminal Court of Assize (composed of Chief Justice Sir Michael McDonnell and Justice De Freitas) on November 9 , 1929 and upheld by the Supreme Court
  5. TNA / CO 733 / 180 / 7 , transcript of the proceedings of the Privy Council on March 28 , 1930 , appeals for Ahmed Jabir al - Khatib and others ; Ahmed Mustafa Sherifi and others ; Rashid Salim Haj Darwish and others ; Mustafa Ahmed Deiblis ; Abdul Jawad Farah and another (5 of the 7 cases where Arabs received the
  6. Ibid. The disconnect with the historic law of the land resembled the arguments over control of the Wall and the proper application of the status quo that dominated the earlier phases of the Buraq Moment. The advocates for the defense argued that the historic rights of the local population were denied to them
  7. Ibid., p. 36.
  8. Ibid.

That is, the Shaw Commission, among other things, found that the violence was not premeditated, in direct contradiction with the rulings attached to the death penalties.45 Musa Kazim al-Husayni, a leading figure on the Arab Executive Committee and former mayor of Jerusalem, acting on the assumption that the findings of the inquiry would force the colonial office to change its policy, wrote directly to Passfield while on a delegation to London urging the government to commute all the death sentences.46 Much to his dismay, the process of “colonial justice” did not include these sorts of considerations. After the Colonial Office decided to give Chancellor total discretion to “deal with the [local] demands of justice and mercy,” given the considerations of the political environment, the burden was his alone to bear.47 Passfield did however suggest that given the delicate and volatile environment prevalent in Palestine, “executions should in any case be restricted to the smallest number compatible with the demands of justice.”48 Chancellor wrote back to London saying, “if I follow my own inclination I should be disposed to commute the sentences, but I consider that it is necessary as a deterrent against the repetition of such crimes to let it be understood that [the] death penalty will not be commuted in cases of acts of savagery committed at Safad and Hebron for which the law prescribes extreme penalty.”49Despite the purposeful and rhetorical exclusion of a “political element” to the specially constructed “riot courts,” the final decision to send these men to the executioner’s noose was fundamentally and explicitly a political decision. Chancellor wanted to quickly close the chapter on the riots through the implementation of only a few death penalties, fearing the “possibility of armed bands organizing anew to attack Jewish colonies” in response to the executions Judges…in a country with a system of law in it, have no right to administer in that country something which is not the law of that country at all, because they are consciously or unconsciously, expressly or impliedly, applying a different system of law… The departure of the judges from Ottoman Law, in my submission is so grave that it amounts to two things: that they never considered or applied the law and they have sentenced a man to death without considering whether he has been guilty of a capital offense.50If premeditation, therefore, required a calm mind, and calm minds were as rare as “primroses in December” in Palestine on the days of the riots, then by any basic application of local law, no death penalty could be properly justified. In spite of these efforts, the appellate courts confirmed the original criminal court’s rulings in the death penalty of a majority of the cases.51Although the judicial process was constructed on the basic rule that prohibited political content to enter the proceedings, the very nature of the courts and the process were political. Although the colonial politics of the courts proceedings were inherently political, the last stage in this micro-narrative was blatantly political. Regardless of the courts’ findings, the final decision, or ultimate veto power, lay with the highest political figure for the British in Palestine—the High Commissioner. The final decision to execute any or all of the 25 convicted men was John Chancellor’s to make. The process and the law was essentially colonial power masquerading in the rhetoric of liberalism—a means to an end that seemed prescribed from the beginning. In consultation with Lord Passfield in the Colonial Office, Chancellor explained that the findings of the Shaw Commission report gave the local Arab leadership the hope that the death sentences would be commuted based on the commission’s conclusions.

  1. Ibid., pp. 41  -  47. Darwish , Rashid Mohammad Khartabil , Mustafa Ahmad Diblis , Ahmed Mustafa Sherifah. (TNA / CO 733 / 181 / 4.)
  2. The courts confirmed the rulings for the following Arabs in Hebron: Abd al - Jawad Hussein Farah , Ata Ahmad al - Zir , Isa al - Arafi , Shaker Mahmoud Halwani , Shukri Mahmoud Halwani , Mohammad Khalil Abu Jamjoum , Abbas Nasir al - Din , Abd al - Shakour Sharabati , Abd al - Hafiz Abd al - Nabi Ajuri , Shihdah Awaydah ; and for the following Arabs in Safad: Ahmed Jaber Khatib , Aref Tawfiq Ighnaym , Nayaf Tawfiq Ighnaym , Fuad Hassan Hijazi , Mohammad Abd al - Ghani Hijazi , Tawfiq Obayd Ahmad , Ahmad Salah Killani , Rashid Salim Haj Darwish , Mohammad Salim Zaynab , Jamal Salim Kholi , Ali Salim Haj
  3. Report of the Commission on the Palestine Disturbances of August , 1929 , Cmd. 3530.
  4. Letter from Musa Kazim to Passfield , April 19 , 1930 , pp. 52  -  55. TNA / CO 733 / 180 / 7.
  5. Letter from Passfield to Chancellor , April 17 , 1930 , p. 128. TNA / CO 733 / 180 / 7.
  6. Ibid.
  7. Chancellor to Passfield , April 5 , 1930 , p. 130. TNA / CO 733 / 180 / 7.

wanted to cut the beast off at the head, but do so with as little attention as possible. He subsequently ordered a complete shutdown of the press, deemed the city of Acre (where the executions were to take place) a closed security zone, and placed a ban on any form of public protests in the other major towns and cities of Palestine.52

further demoralize their national movement.53 When Chancellor issued his official statement that lifted the death sentence on all but three of the men convicted, official Arab organs—from political organizations to the press—petitioned the high commissioner to make his reprieves comprehensive.54 Chancellor and his administration, however, ignored the pleas of all of the local leaders, including their colonial-appointed and carefully selected leaders of the Supreme Muslim Council and the Arab Executive Committee. This was the final blow to the traditional notables’ exclusive hold on local political power. Their arguments regarding the necessity of cooperation with the local colonial system were hallow in the face of their utter failure to use their “influence” to prevent the executions. After all, if none of these traditional leaders could persuade the government to spare the lives of these men, how could they be expected to achieve anything from a government that did not listen to their desperate pleas? Though this episode is a small part of Palestinian history, it demonstrates how the legacy of colonial rule through colonial law has its historical foundation in the British foundation of criminal law in Palestine. British colonial practice laid the groundwork for the criminalization of resistance that is still very much a part of how political dissent is manipulated in the and their potential to turn their rage toward local British targets, a move Chancellor warned of often in the wake of the riots. As a result, he decided that Mohammad Jamjoum and Ata al-Zir from Hebron and Fuad Hijazi from Safad were the popular leaders of the riots, and, as such, the government had to execute them as a sign of its strength and determination. He

The Executions and the Construction of Palestinian Martyrs

In a hastily constructed notion of the preservation of public order, the local British government led these three men to their deaths in the false hope that killing them would effectively silence the growing protest movement. Though the government declared an all-day curfew and ordered all shops and schools closed, people throughout Palestine memorialized the events.55 It was obvious to local observers that, in spite of his claims of equal justice for all, the death penalty applied only to Arabs. Published as an editorial in Filastin , Isa al-Isa described the executions as proof of blatant British disregard for Arab life in spite of their claims of the practice of equal justice.56 It was clear to the local Arab observers that the judicial procedures in the wake of the riots and its most severe penalties were exclusively applied to Arabs.57By the end of May, when it became apparent that the government would uphold some of the death penalties, al-Isa called on all Arabs in Palestine to understand this “injustice,” not as an anomaly of British rule, but as a fundamental part of it. He explained that the recent Arab delegation sent to London, led by the Mufti Amin al-Husayni and Musa Kazim al-Husayni, achieved nothing. As a further insult, they returned to Palestine to find the local administration preparing to execute men convicted in courts that were political constructs created to

  1. All the Arabic language newspapers in Palestine were forced closed on June 7 and not permitted to open until after June 23. pieces in the 25 , 26 , and 27 editions of June ’ s paper.
  2. By describing June 17 th as a historical day for Palestine , Filastin collected accounts from people throughout Palestine and presented their stories in various
  3. “ Precious Blood and Expendable Blood ,” Filastin , April 8 , 1930. same fate.
  4. al - Isa commented that while dozens of convicted Arabs were being denied appeals , it was clear to him that none of the Jewish suspects would suffer the
  5. “ Palestine Day and the Death Penalty ,” Filastin , May 21 , 1930. Mandate administration based on framework established by the Buraq riots.
  6. Filastin followed progress (or significant lack thereof) of the Arab delegation throughout its stay in London publishing twelve pieces in May that documented the delegation ’ s failures , the British government ’ s unwillingness to amend its policies or change its politics , and the dire need for a new approach towards the
  7. Filastin , June 4 , 1969.

process set forth by this small episode, in part, defined the nature of British rule in Palestine. By creating a system where justice is observed through the small peephole of colonial control, laws and the system that governs them, prop up the matrix of colonial control.

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