Palestine’s history of foreign domination is different than any other country in the Middle East. With the establishment of the state of Israel in 1948, followed by the Israeli military occupation of the West Bank and the Gaza Strip after the 1967 war, Palestine is the only country in the region that is still, in fact, under occupation.
However, with the establishment of the Palestinian National Authority (PNA) in 1994, official institutions became independent, even though a viable independent Palestinian state is still a distant vision. Many countries that have known foreign domination can testify to the remnants left behind from one occupation to another; in Palestine, the legal system is one such trace. It forms a patchwork of laws that are the result of political developments in the region throughout its history. Some laws still in use today date from the period when Jordan controlled the West Bank and Egypt controlled the Gaza Strip, while others are from the times of the British Mandate in the 1930s.
Since its inception, the PNA has founded justice institutions that deal with civil and criminal cases under its authority. These institutions are the Ministry of Justice, the Supreme Judicial Council, the Public Prosecution, the Ministry of Interior, the police force and the courts. Even for legal cases that one would think would be solved quickly; the judicial process is lengthy and tiresome. The United Nations Development Program (UNDP) says that there is a lack of trust among Palestinians in their legal system and that taking legal action comes with big risks, such as economic loss, intimidation or violence. Moreover, according to a survey carried out by the UNDP, part of the Palestinian population claims there is a lack of qualified lawyers in all areas of the law, and that rather than being independent, the judiciary is politically affiliated.
When courts are no option, resorting to a parallel and unofficial legal system — the clan-based justice or tribal law — makes an attractive alternative. Tribal law is practiced all over Palestine today, with elders or heads of clans, functioning as judges.
Na’im Mukarker, who is the head of his clan, is a tribal law judge. Persons in this capacity carry out their duties without charging a fee, and solve disputes relating to all types of cases — from very serious crimes including murder, to lighter ones such as land disputes between neighbours. Sitting on his porch in Beit Jala, a town in the Bethlehem district in the West Bank, surrounded by three little granddaughters, he describes the difference between tribal law and the official Palestinian judicial system.
“The main difference is that matters resolved through tribal law are resolved more promptly than through the courts,” he says. “For this reason, people generally prefer the clan-based justice system: it goes much faster, the matter at hand gets resolved, and they are able to move on.”
Over a cup of black coffee, the question comes up: “What about more serious cases such as murder? Can such cases be resolved solely through tribal law?”
“No,” he replies, sipping on his coffee. “The good thing about tribal law is that it is not constant, it is dynamic and ever-changing. In the old days, a murder case may have been able to be resolved simply with tribal law. In such a situation, what is called ‘blood money‘ is paid as compensation by the murderer to the family of the victim. This compensation is paid to avoid a cycle of revenge between the two families. While this practice still exists, nowadays there is the official law that we need to consider, of course. This has led to the practice changing over time.”
He continues. “Let me give you an example: In civil cases like theft, land issues or even family disputes, a document can be handed to the police, signed by those affected, saying that the issue will be resolved only through clan-based justice. Then the police stay out of it. In more serious cases like — God forbid — a murder case, no such document can be signed and the case is handled through the official legal system,” Mukarker says.
“In the case of a murder where, say, a member of family A kills a member of family B, then family A has to pay a very large sum of blood money to family B, after establishing a truce. The blood money is used to avoid a cycle of violence and revenge between the two families. But this is in addition to the suspect having to go to jail and being tried in a criminal court. So usually, the two legal systems work in parallel. There is not one that outweighs the other; they are both legitimate.”
Given the many conflicts Palestinian society has experienced over the years, it is no wonder clan-based justice has gained such importance. The official Palestinian institutions, including the judiciary, were weakened during the Second Intifada, which led to tribal law taking on a more important role. Since the end of the Intifada, the international donor community has worked towards establishing judicial reform within the PNA. However, political interests have taken priority over the judiciary’s independence, which is currently being questioned, mainly as a result of the internal division between the two political factions, Fatah and Hamas.
Since 2007, Hamas has had control over the Gaza Strip and has for some years been passing new laws through the Palestinian Legislative Council there. The problem is that these laws are being passed without holding plenary sessions that rather than including all political factions, only include Hamas. This creates a sense of lack of independence of the judiciary in the Gaza Strip.
As for the West Bank, where Fatah is still in control, members of Hamas have been arrested, forbidden to exercise their right to freedom of expression and assembly, and fired from their posts as civil servants because of their political affiliation. It is the executive force that mainly carries out these practices. Meanwhile the judiciary remains silent and courts delay their decisions in open cases.
With a central authority that remains weak in matters of administration of justice, it is no surprise that alternative forms take on an important role. As long as political uncertainty remains, it appears Mr Mukarker’s house will remain open for Palestinians from all over the West Bank to come and have their disputes resolved.