Criminals or Martyrs? Let the Courts Decide!

-British Colonial Legacy in Palestine and the

Criminalization of Resistance
Author(s): Rana Barakat
Source: AlMuntaqa , Vol. 1, No. 1 (April 2018), pp. 84-97
Published by: Arab Center for Research & Policy Studies
Stable URL: https://www.jstor.org/stable/10.31430/almuntaqa.1.1.0084

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  (2018) - 1 (1) Articles
DOI: 10.31430

Criminals or Martyrs? Let the Courts Decide!-

British Colonial Legacy in Palestine and the
Criminalization of Resistance (1)

Rana Barakat(2)

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  

Introduction
On June 17, 1930, British prison guards in the Palestinian history has memorialized these men as
northern city of Acre led three Palestinian men to celebrated martyrs. Their names are memorized by
the executioner’s noose, the ultimate punishment schoolchildren, and the story of their sacrifice is
determined by the colonial law of British-controlled nothing short of legend in popular memory.(3) The
Mandate Palestine. The story of these three details of their story, or that of the revolt they were
men-Ata al Zir, Mohammad Jamjoum and Foud participants in, however, is often lost within the
Hijazi-is a profoundly important part of the history larger national Palestinian narrative. How did these
of Palestinian Arab accounts of martyrdom and men become martyrs? That is, how and why were
national sacrifice. The legacy of these men looms they killed, and how did the use of the colonial law
large in popular Palestinian history. Though British determine the outcome of this small but significant
and Zionist historiography followed the colonizer’s phase in Palestinian history?
lead, painting them as irrational murderers, popular

1 This study was originally published in the sixth issue of Omran (Autumn, 2013, 55-72). Omran published by the Arab Center for Research and Policy
Studies, is a peer-reviewed academic quarterly journal specializing in the social sciences.
2 Professor in the Department of History and Contemporary Arab Studies at Birzeit University in Palestine. She received her PhD from the University of
Chicago. Her research focuses on the social history of Jerusalem, colonialism, and revolutionary social movements. She can be reached at: rnbarakat@birzeit.edu.
3 See Ghassan Kanafani. Adab al-Muqawamah fi Filastin al-Muhtallah, 1948 - 1966. Beirut: Dar al-Adab, 1966; Barbara Harlow, Resistance Literature.
New York: Routledge, 1987.

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Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

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

4 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
York: Berghahn Books; 2005.
5 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,
thus ending a direct European colonial involvement, it is still very much a continuing colonial context under Zionist settler-colonial rule in occupied Palestine.
6 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.
7 Adalah’s Review - Law and Violence. Volume 2, Summer 2002, http://adalah.org/Public/files/English/Publications/Review/3/Adalah-Review-V3-Summer-
2002-Law-and-Violence.pdf. Also see Adalah’s Review - On Criminization. Volume 5, Spring 2009, http://adalah.org/Public/files/English/
Publications/Review/5/Adalahs-Review-v5-Spring2009-On-Criminalization.pdf. Accessed 15 August 2013.

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 Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

foundation for the on-going colonial criminalization

of resistance.(8)

Background - Colonial Law and Palestine

In general, colonial law is a well-explored field, Though the British along with the French established
and the evolution of British colonial legal structures these type of “Class A” Mandates throughout the
and juridical maneuvers throughout the empire, Arab east (the contemporary states of Lebanon, Syria,
specifically, is a rich discourse.(9) British Mandate Jordan, Palestine/Israel, and Iraq), Palestine was a
Palestine constituted a unique case in modern unique phenomenon. In addition to direct British
colonial history. It was a product of post-World War control, the European-based Zionist movement also
I agreements to divide former enemy territory, in this established a stronghold within the Mandate to add a
case the Ottoman Empire. It was also part of an attempt European settler-colonial movement into the colonial
by the newly constructed vision of an “international mix.(11) Essentially, the newly established British
administration in Palestine not only ruled over the
community”-in the form of the League of Nations-to
indigenous Arab population, but also facilitated, and
supervise the Mandate under the guise of a national
at times tried to control, the state-building process of
transition. Under the principles of the Covenant of
an immigrant Jewish population. This combination
the League of Nations, European powers in their led to a precarious and often violent history for a fight
capacity as Mandate governments were required to over control of politics and the land.
create and foster local state structures in anticipation
of a movement toward independent statehood. Though this colonial presence engendered resistance
from the beginning, the Buraq Revolt is a historical
Specifically, Article 22 of the League of Nations
watershed moment as a major episode of sustained,
formed the ideological and practical foundation of the
nation-wide resistance that began a more volatile
Mandate structure. Thus, the Mandatory powers were
phase of Mandate rule.(12) Beginning in Jerusalem at
entrusted with the “tutelage” of local populations
the symbolic epicenter of the Buraq/Wailing Wall in
in the advancement toward independence. Article August 1929, the revolt quickly spread to other cities
22 explicitly stated, “certain communities formerly and towns throughout Palestine. Over the course of
belonging to the Turkish Empire have reached a stage two weeks, 116 Arabs and 133 Jews were killed as
of development where their existence as independent rioting raged throughout major towns from Safad in
nations can be provisionally recognized subject to the north to Hebron in the south. Though the conflict
the rendering of administrative advice and assistance specifically related to Muslim and Jewish claims to
by a Mandatory until such time as they are able to the holy wall had been building for more than a year,
stand alone.”(10) the initial sectarian tensions were merely a symptom

8 See Leslie Sebba. “The Creation and Evolution of Criminal Law in Colonial and Post-Colonial Societies,” Crime, History, and Societies 3, No. 1 (1999),
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.
9 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
of Muslim Family Law,” International Journal of Middle East Studies, No. 11 (1980), pages 451 - 465.
10 The Covenant of the League of Nations re-printed in The Israel-Arab Reader: a Documentary History of the Middle East Conflict, 6th edition, Walter
Laqueur and Barry Rubin, eds. (New York: Penguin Books, 2001), pages 30 - 36.
11 For more on the Mandate see for example: Khalidi, The Iron Cage, 2006; Matthews, Confronting an Empire, Constructing a Nation, 2006; Segev, One
Palestine Complete, 2000; Lesch, Arab Politics in Palestine, 1979.
12 For a complete analysis of the Buraq Revolt see: Barakat, Rana. “Thawrat Al Buraq in British Mandate Palestine: Jerusalem, Mass Mobilization and
Colonial Politics, 1928-1930,” PhD. Dissertation, University of Chicago, 2007.

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Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

of the struggle between competing national identities.(13) military assistance and the revolt was met with great
As the riots spread beyond Jerusalem, the British force and brutal measures, including an extraordinary
Palestine police force was quickly overwhelmed
and ill-prepared for the indigenous revolt. The number of arrests and the subsequent establishment
high commissioner’s office immediately requested of emergency riots courts.

Colonial Justice under Mandate Rule - Composition of the Courts

and the Law
As in other forms of their local governing philosophy, a statement on September 4, 1929 that partially
the British Mandate established a justice system explained the style and substance of the courts that
that combined both indigenous and British forms would be set up to try the “criminal” cases arising
of legal systems. Over the course of Mandate rule, from the riots. According to Ordinance Number 31
the country’s legal system underwent a process of (1929), or the Courts Amendment Ordinance, only
transformation, combining locally prevalent Islamic British judges were to try the cases, excluding judges
and French norms with English common-law elements of Palestinian nationality, both Arab and Jew. The
in a process often referred to as “Anglicization.” ordinance also introduced a fast track appellate
The result of this process, as described by the first process. These special procedures, however, achieved
Attorney General in Mandate Palestine, Norman the opposite results from what the British desired.
Bentwich, was “a mosaic [with] a pattern made up In their effort to overcome their incompetency in
of many legal pebbles: Ottoman, Muslim, French, governance, the British suppressed and ignored the
Jewish and, above all, English.”(14) As in other aspects underlying root causes, thus exacerbating the general
of their Mandated colonial rule, the British attempted sense of Arab resentment in the wake of the riots.
to retain the previously existing Ottoman judicial
system (15) as their status quo. While the British Prior to the special rules established for the riot
retained a degree of Ottoman Law, they also amended courts, criminal disputes were generally tried in local
these laws over the three decades of their rule so magistrate courts staffed by British, Jewish, and Arab
that ultimately, English common law dominated magistrates.(17) According to the Courts Ordinance
the system.(16) More importantly, British political Act (1924), in the normal composition of a Court
demands informed the process and means by which of Criminal Assize, which tried offences punishable
their justice was exercised. These political demands with death, the chief justice or a British judge of
dominated the construction of criminal law in the the Supreme Court, and the British president along
case of the riots. In spite of British claims that they with two other judges of the district court sat to hear
maintained the structure of the status quo, the changes the trial. Of these four judges two were British and
that occurred to try the criminal cases relating to the two were Palestinian (Arab or Jewish). The Courts
riots constructed a new colonial concept of “political Amendment Ordinance created in the wake of the riots
justice.” provided that the Court of Criminal Assize consist
After his hasty return to Palestine in light of the of just two British judges.(18) The new ordinance
riots, High Commissioner John Chancellor issued amended the process in the appellate procedure as

13 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.
14 Norman Bentwich and Helen Bentwich, Mandate memories: 1918 - 1948 (London: Hogarth, 1965) p. 201.
15 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
regarding criminal, commercial, and procedural processes; in the case of family law, the law of Palestine’s religious communities prevailed.
16 This process was common in colonial contexts and used “law” as part of the civilization mission claiming to bring colonized populations into “modernity,”
thus manipulating juridical process to further colonial and imperial ends. (see Merry, Colonizing Hawaii.)
17 For a complete discussion of state courts in the Mandate period see: Likhovski, Law and Identity in Mandate Palestine. pp. 21 - 45.
18 Disturbances, Death Sentences, Part I, pages 22-35, The National Archives of the UK/Colonial Office (TNA/CO) 733/180/6.

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 Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

well.(19) In addition to the fast track nature of the set up in haste showed no respect for the law, and the
appeals process afforded the criminal trials related newly constructed courts went out of their way to
to the riots, the appeals were brought forth from the disgrace Arab defense lawyers, further complicating
special Court of Criminal Assize, to the Supreme their work. The report concluded: “For all these
Court. This acted as the appeals court, composed reasons, [we] issue these complaints on behalf of the
of three judges who should have been sourced from Arab population of Palestine and urge the Government
outside the original Assize Court where the initial to be conscious of their duties towards justice.”(23) In
decision was passed.(20) spite of this firm Arab rejection of the process, the
criminal courts proceeded with this method.
With the exclusion of local judges from the appellate
process, it seemed that, by removing a local element The criminal law enforced in Palestine was based
or influence, the British felt they could guarantee on the Ottoman Penal Code with significant changes
a process void of politics. This obvious attempt to made by the Mandate government, particularly
superficially remove the politics from the proceedings the Criminal Law Amendment Ordinance (1927).
colored the course of the general trial process. The Especially important, with reference to the
British administration clearly believed that focusing death penalty, were Articles 169 and 170, which
explained that only under the circumstances of clear
on the violence as criminal acts would “sanitize”
premeditation could the defendant be sentenced to
the process. In effect, however, they introduced a
death.(24) The Criminal Law Amendment Ordinance
new colonial construct to Palestine, which resonated
also adopted English rule with regards to principles
well beyond the Buraq moment, when they attempted
and accessories of a crime, essentially extending the
to, at best, ignore or, at worst, suppress the obvious
category of “persons party to an offence” to include
political implications of the Arab riots.
those who had committed the actual crime and those
The Association of Arab Lawyers in Jerusalem issued who in any way enabled, knew about, or assisted in
a critical report of the “riot courts” on October 11 as the general carrying out of the offence.(25) This was an
the criminal process was underway.(21) This report important criterion in trying those accused of murder
listed seven primary objections to the new criminal in the riots, for even if the prosecution could not find
procedures. The report formalized a complaint that factual evidence on those accused, their participation
the proclamation issued by the high commissioner in the riots would be sufficient grounds for a guilty
on September 1 tainted the environment and biased verdict. In this way, the political component of the
the courts against Arabs. Moreover, the lawyers riots was effectively criminalized within the general
documented a dangerous anti-Arab prejudice that category of mass mob violence. Moreover, as we
was, in their words, “a huge denial of Arab rights shall soon see, this played a fundamental part in the
throughout Palestine” and created an insurmountable High Commissioner John Chancellor’s final political
obstacle to the progress of the process.(22) The lawyers decision to uphold the death penalty for the three
further noted that the speed of the arrests and trials Arab men executed, a decision based on their role
were major obstructions in the pursuit of any kind of as “ring leaders” of the mass protests in Hebron and
justice. They also claimed that the truncated courts Safad.

19 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
hearing an appeal from a Court of Assize, but normally the court was composed of five judges (both British and Palestinian).
20 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
defy logic that a small place like Palestine would have enough British judges to prevent this duplication. [TNA/CO 733/180/6, page 25.]
21 This report was reproduced in Filastin on October 15, 1929.
22 Ibid.
23 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
legacy in Palestinian history, Musa al-Alami was one of the prosecuting attorney’s during the first phase of the trials in Palestine.
24 “Norman Bentwich’s report to the appellate court in London,” pages 11 - 15. TNA/CO 733/180/6/ff33.
25 Ibid.

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Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

Through this specially constructed legal process, found guilty, in addition to 150 Arabs convicted of
three courts were set up in Jerusalem, Haifa, and looting and arson and 219 for minor offences. In
Jaffa. Over 700 Arabs were tried for offences in the contrast, 70 Jews were charged with murder, with
two found guilty and sentenced to death. A further
riots, as were 160 Jews. As a result, a total of 124
39 Jews were charged with attempted murder, one
Arabs were charged with murder, with 55 found of whom was found guilty, and seven more Jews
guilty and 25 condemned to death. A further 50 were were convicted of looting and nine others of minor
charged with attempted murder, 17 of whom were offences related to their behavior during the riots.(26)

The Criminalization of the Riots

The British High Commissioner of Palestine John stood accused of “murder and mayhem” following the
Chancellor followed his initial public declaration, riots. In the Courts (Amendment) Ordinance enacted
on September 1, in the immediate aftermath of the one day earlier, Chancellor formally instructed the
Buraq Revolt with another proclamation three days theater to try the “offenders without distinction of
later. He stated that the government would pursue all race or creed”. This new law created the system by
those who violated the rule of law during the riots. which the British would achieve “colonial justice” in
He explicitly disclosed that all criminals, both Jewish their formal criminalization of the riots.
and Arab suspects, were subject to this process.(27)
The Chancellor administration’s public face painted
This proclamation, in part, responded to the local
the riots as nothing more than unmotivated acts
and regional criticisms of his initial bombast where
of barbaric violence and violations against public
he accused only Arabs of harming public security.(28)
More importantly, however, it was a part of an overall order.(30) This was in stark contrast to the realizations
British effort to set the guidelines for the next phase Chancellor expressed in his internal communications,
of the riots’ aftermath and their future policy in where he and others in the administration expressed
dealing with Palestinian Arab political protest solely their frustration with the untenable political position
as acts of criminal violence, ignoring or suppressing of promoting one national struggle over another. First,
any political element to the protest. This statement the government successfully limited the Mandate of
incorporated an announcement from the colonial the Shaw Commission, thereby nullifying any real
secretary that explained the mission of the assigned political discussions in the work of the committee and
Commission of Inquiry to look into the riots, to be led its final report. Additionally, the constructed process
by Walter Shaw. The commission’s terms of reference by which the government created the new criminal
were greatly contested within the colonial office. process described above further consolidated the
In the end, those who advocated a limited Mandate government’s public aim to marginalize the riots.
won out, whereby the commission was ordered to Though they controlled every aspect of the process,
look into the “immediate causes which led to the Chancellor’s administration could not control the long
recent outbreaks.”(29) Larger political issues were not lasting effects of this criminal process. The behavior
to be discussed, and the commission was told not to of the British, as judges and executors, both reflected
engage with major policy issues in its final report. a contemporary British ethos towards dealing with
The implications of the boundaries of this construct, the riots, and provided the symbols that served as a
moreover, were mirrored in the description of the legacy of the revolt. Through the newly established
criminal procedures to try and convict those who courts, the local government tried hundreds of men

26 Norman Bentwich. England in Palestine. London: Kegan Paul, Trench, Trubner, an Co. Ltd, 1932. p. 203.
27 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.
28 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.
29 “Williams memo, 4 September 1929”. Commission and Inquiry. TNA/CO/733/176/2.
30 John Chancellor Papers, Rhodes House, Oxford University, Box 11, file 4, ff 89 - 90.

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 Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

for crimes committed in different cities throughout language newspaper Filastin doubted British notions
the country. The courts that condemned these men of justice in light of their behavior in the riots.
were established for the express purpose of further Though Chancellor claimed otherwise, the author
suppressing the political motivations of the riots and of this article concluded before the process began
establishing the quickest construct of “justice” the that “[British] prisons and trials in Palestine are only
government could create to reinforce their control intended for Arabs…the real victims of so-called
of the country. British justice.”(31) In an open, unsigned letter
As in his initial communiqué, described by Arab published in the Haifa based newspaper al-Karmil,
commentators as the “proclamation of blame,” Arabs the author mocked the use of the word “justice” by
responded with similar skepticism to Chancellor’s a government that blamed the victims. He stated
second proclamation. In spite of the British attempt that “there is no government [that truly cares about
to disguise the politics with a broad stroke of justice] and would support the criminal policies…of
juridical “justice,” local commentators understood the destruction of a people and a nation.”(32) In spite
the government’s intentions to further suppress of British efforts to construct a judicial process for the
Arab opposition to the colonization of Palestine riots devoid of politics, because the riots were by very
under the pretext of criminal courts. A front-page nature politically motivated, they could not create a
article in the widely circulated Jaffa-based Arabic system outside of Palestine’s political realities.

The Trials and Appeals: Politics of the Death Penalty

Seven separate trials resulted in the death penalties advocate for the defense interrogated a local character
of the Arab suspects over the course of the fall and witness-Shaykh Ali Salah al-Din, a local religious
winter of 1929 - 1930.(33) All of the cases dealt with teacher in the government school. The lawyer asked
riots in the cities of Hebron and Safad on August 24 if there was ill feeling against the Jews before the war
and August 29, respectively. Throughout the entire and the Balfour Declaration, but the court disallowed
process, the defense was not allowed to submit any the question before the witness could answer. Then,
material or conduct any questioning that put the the lawyer asked if he knew that in August the Jews
riots in a political perspective. In order to remove interfered with the Buraq/Wailing Wall in reference
the politics, the administration hoped that treating to Jewish provocations at the Wall, but again, before
the Arab defendants solely as criminals would work the witness could answer, the court disallowed the
to suppress the reality driving the riots. For instance, question.(35) Without the ability to introduce a political
in the Court of Criminal Assize’s trial of three men dimension to the cases, the defense turned to the next
from Safad, the court quickly struck down any kind of obvious method-questioning the process.
political insinuation.(34) In this case, like in the others, During the original court hearings in Palestine, the
as soon as any kind of political context was introduced, local defense teams constructed their defense by
the court objected under the rule that the introduction questioning elements of the law. In the appellate
of political matters was inadmissible. Even simple process, they turned their focus onto the process
questions went unanswered. For example, the defense constructed in the wake of the riots. The defense
tried to draw a picture of the situation in Safad during representing the Arab suspects then questioned
the week between August 23 and August 29. The the hastily constructed nature of the courts and the

31 “Innocents,” Filastin, September 12, 1929.

32 “A Path Towards Peace?” al-Karmil, September 14, 1929.
33 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
when the three Arabs were executed, Chancellor later reduced his charges before his appellate process completed.
34 Transcript of the Court of Criminal Assize trial of Ahmad Jaber al-Khatib, Aref Tawfiq Ighnaym, and Nayef Tawfiq Ighnaym (October 18, 1929), pp.
31 - 63. TNA/CO 733/181/3.
35 Ibid., p. 62.

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Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

loose application of local law. Not surprisingly, in all Council for the defense of a group of men from Safad,
seven cases, the defense challenged the prosecution including Fuad Hijazi, who was eventually executed,
regarding the idea of “premeditation”. The appellate the petition once again argued that under a correct
plea to the Privy Council in the case of Mustafa application of Ottoman Law, the defendants acted
Ahmad Deblis vs the Attorney General was a good in an atmosphere of “religious frenzy arising out
example of this argument.(36) In particular, the defense of differences between Arab Mohammedans and
argued that the distinction between premeditation Jews.”(39) This same basic formula was used in the
and murder in Ottoman Law differed from English appellate defense of Arab suspects from Hebron,
Law; according to Ottoman Law, “murder with where the events of August 24 were described as
premeditation is only committed by one who kills “spontaneous…civil commotion … [and] not the
with deliberate intention, having had time in which result of a pre-organized and premeditated intention
to resolve upon, reflect upon, and finally to execute on the part of Arabs to kill Jews.”(40)
that intention”.(37) The defense further argued that the In the oral arguments in front of the Privy Council
violence was a result of spontaneous riots, which, in London, this same trend arose as the attorneys for
by their very definition, precluded any form of the defense argued that the British administration
premeditation. The argument read: could not convict and execute men on grounds not
The homicides in this case are a part of a series that established within Ottoman Law. The petitioners
took place in Safad during the civil commotion of the argued that a gross “denial of natural justice” resulted
29th [of August] which arose as a result of religious in the convictions of these men.(41) In addition to the
frenzy arising out of the differences between Arab complaint that the courts’ process and judgments
Mohammedans and Jews. In the absence of any were not respectful of local law, the English lawyer
evidence established that the civil commotion was the for the defense, Douglas Pitt, claimed that none of
result of a pre-organized and premeditated intention these men would have been found guilty “if their
on the part of the Arabs to attack and kill the Jews, cases had been dealt with according to the natural
it is submitted that according to Ottoman Law the justice and the laws of their country”.(42) Pitt claimed
homicides that took place were not premeditated.(38) that both the drastic change in the composition of the
Regardless of the specific details of this particular courts, and the complete exclusion of local judges
case, this argument around “premeditation” generally affected the “organic” connection the law had with
reflected the approach of the various defense teams the local populations. This disconnect, moreover, led
of the accused Arabs. In another petition to the Privy to the grave misinterpretation of justice on the part of

36 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
Palestine on 2 December.
37 TNA/CO 733/180/6, pp. 56-61, from the text of the defense application to the Privy Council.
38 Ibid.
39 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
(composed of Justices Sir Michael McDonnell, FH Baker and R. Copeland).
40 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
(composed of Senior Puisne Judge, Justice Corrie, and Justices Tute and Copland) on December 5, 1929.
41 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
death penalty). (For the petitioners: DN Pritt, Horace Douglas, and Abacarius Bey.)
42 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
in every stage of this process.

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 Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

the riot courts. He explained, “If people are rioting the proceedings, the very nature of the courts and the
and looting and smashing, there is sure to be some process were political. Although the colonial politics
killing… [but] premeditation implies you thought of the courts' proceedings were inherently political,
about it - and logically, rioting cannot engender that the last stage in this micro-narrative was blatantly
thought process.”(43) He went on to further chastise the political. Regardless of the courts’ findings, the final
process, “it is one thing to decide a question of law decision, or ultimate veto power, lay with the highest
wrongly, although that is bad enough; but it is another political figure for the British in Palestine-the High
thing to decide a question of law so wrongly that you Commissioner. The final decision to execute any or
are really ceasing to administer the law of the country all of the 25 convicted men was John Chancellor’s to
at all.”(44) Implicitly yet forcefully, this argument make. The process and the law was essentially colonial
questioned the entire process the local administration power masquerading in the rhetoric of liberalism-a
hastily constructed to legally suppress the riots, and, means to an end that seemed prescribed from the
by extension, the nature of the administration itself. beginning. In consultation with Lord Passfield in the
Before the judges of the Privy Council, the advocate Colonial Office, Chancellor explained that the findings
of the Shaw Commission report gave the local Arab
for the defense further questioned the validity of the
leadership the hope that the death sentences would be
legal process:
commuted based on the commission’s conclusions.
Judges…in a country with a system of law in it, have That is, the Shaw Commission, among other things,
no right to administer in that country something found that the violence was not premeditated, in
which is not the law of that country at all, because direct contradiction with the rulings attached to the
they are consciously or unconsciously, expressly or death penalties.(47) Musa Kazim al-Husayni, a leading
impliedly, applying a different system of law… The figure on the Arab Executive Committee and former
departure of the judges from Ottoman Law, in my mayor of Jerusalem, acting on the assumption that the
submission is so grave that it amounts to two things: findings of the inquiry would force the colonial office
that they never considered or applied the law and they to change its policy, wrote directly to Passfield while
have sentenced a man to death without considering on a delegation to London urging the government
whether he has been guilty of a capital offense.(45) to commute all the death sentences.(48) Much to his
If premeditation, therefore, required a calm mind, and dismay, the process of “colonial justice” did not
calm minds were as rare as “primroses in December” include these sorts of considerations.
in Palestine on the days of the riots, then by any After the Colonial Office decided to give Chancellor
basic application of local law, no death penalty total discretion to “deal with the [local] demands
could be properly justified. In spite of these efforts, of justice and mercy,” given the considerations of
the appellate courts confirmed the original criminal the political environment, the burden was his alone
court’s rulings in the death penalty of a majority of to bear.(49) Passfield did however suggest that given
the cases.(46) the delicate and volatile environment prevalent in
Although the judicial process was constructed on the Palestine, “executions should in any case be restricted
basic rule that prohibited political content to enter to the smallest number compatible with the demands

43 Ibid., p. 36.
44 Ibid.
45 Ibid., pp. 41 - 47.
46 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
Darwish, Rashid Mohammad Khartabil, Mustafa Ahmad Diblis, Ahmed Mustafa Sherifah. (TNA/CO 733/181/4.)
47 Report of the Commission on the Palestine Disturbances of August, 1929, Cmd. 3530.
48 Letter from Musa Kazim to Passfield, April 19, 1930, pp. 52 - 55. TNA/CO 733/180/7.
49 Letter from Passfield to Chancellor, April 17, 1930, p. 128. TNA/CO 733/180/7.

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Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

of justice.”(50) Chancellor wrote back to London the “possibility of armed bands organizing anew to
saying, “if I follow my own inclination I should be attack Jewish colonies” in response to the executions
disposed to commute the sentences, but I consider and their potential to turn their rage toward local
that it is necessary as a deterrent against the repetition British targets, a move Chancellor warned of often
of such crimes to let it be understood that [the] death in the wake of the riots. As a result, he decided that
penalty will not be commuted in cases of acts of Mohammad Jamjoum and Ata al-Zir from Hebron and
savagery committed at Safad and Hebron for which Fuad Hijazi from Safad were the popular leaders of
the law prescribes extreme penalty.”(51) the riots, and, as such, the government had to execute
them as a sign of its strength and determination. He
Despite the purposeful and rhetorical exclusion of wanted to cut the beast off at the head, but do so
a “political element” to the specially constructed with as little attention as possible. He subsequently
“riot courts,” the final decision to send these men ordered a complete shutdown of the press, deemed
to the executioner’s noose was fundamentally and the city of Acre (where the executions were to take
explicitly a political decision. Chancellor wanted place) a closed security zone, and placed a ban on
to quickly close the chapter on the riots through the any form of public protests in the other major towns
implementation of only a few death penalties, fearing and cities of Palestine.(52)

The Executions and the Construction of Palestinian Martyrs

In a hastily constructed notion of the preservation By the end of May, when it became apparent that
of public order, the local British government led the government would uphold some of the death
these three men to their deaths in the false hope that penalties, al-Isa called on all Arabs in Palestine
killing them would effectively silence the growing to understand this “injustice,” not as an anomaly
protest movement. Though the government declared of British rule, but as a fundamental part of it.(56)
an all-day curfew and ordered all shops and schools He explained that the recent Arab delegation sent
closed, people throughout Palestine memorialized the to London, led by the Mufti Amin al-Husayni
and Musa Kazim al-Husayni, achieved nothing.
events.(53) It was obvious to local observers that, in
As a further insult, they returned to Palestine to
spite of his claims of equal justice for all, the death
find the local administration preparing to execute
penalty applied only to Arabs. Published as an editorial
men convicted in courts that were political
in Filastin, Isa al-Isa described the executions as constructs created to further demoralize their
proof of blatant British disregard for Arab life in spite national movement.(57) When Chancellor issued
of their claims of the practice of equal justice.(54) It his official statement that lifted the death sentence
was clear to the local Arab observers that the judicial on all but three of the men convicted, official
procedures in the wake of the riots and its most severe Arab organs-from political organizations to the
penalties were exclusively applied to Arabs.(55) press-petitioned the high commissioner to make

50 Ibid.
51 Chancellor to Passfield, April 5, 1930, p. 130. TNA/CO 733/180/7.
52 All the Arabic language newspapers in Palestine were forced closed on June 7 and not permitted to open until after June 23.
53 By describing June 17th as a historical day for Palestine, Filastin collected accounts from people throughout Palestine and presented their stories in various
pieces in the 25, 26, and 27 editions of June’s paper.
54 “Precious Blood and Expendable Blood,” Filastin, April 8, 1930.
55 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
same fate.
56 “Palestine Day and the Death Penalty,” Filastin, May 21, 1930.
57 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
Mandate administration based on framework established by the Buraq riots.

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 Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

his reprieves comprehensive. (58) Chancellor Though this episode is a small part of Palestinian
and his administration, however, ignored the history, it demonstrates how the legacy of colonial
pleas of all of the local leaders, including their rule through colonial law has its historical foundation
colonial-appointed and carefully selected leaders in the British foundation of criminal law in Palestine.
of the Supreme Muslim Council and the Arab British colonial practice laid the groundwork for the
Executive Committee. This was the final blow to criminalization of resistance that is still very much
the traditional notables’ exclusive hold on local a part of how political dissent is manipulated in the
political power. Their arguments regarding the language and practice of law. The political intentions
necessity of cooperation with the local colonial of the British were clear from the moment their
system were hallow in the face of their utter failure interventions began to the final executions of the
death sentences, and the law served as nothing more
to use their “influence” to prevent the executions.
than a tool to achieve the desired political ends. The
After all, if none of these traditional leaders could
process set forth by this small episode, in part, defined
persuade the government to spare the lives of
the nature of British rule in Palestine. By creating a
these men, how could they be expected to achieve
system where justice is observed through the small
anything from a government that did not listen to peephole of colonial control, laws and the system that
their desperate pleas? governs them, prop up the matrix of colonial control.

58 Filastin, June 4, 1969.

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Criminals or Martyrs? Let the Courts Decide!—British Colonial Legacy in Palestine Articles

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