Presentation on theme: "The coexistence of formal and informal justice in Palestine Asem Khalil, Ph.D. LSA annual Meeting Baltimore, 6-9 July."— Presentation transcript:
The coexistence of formal and informal justice in Palestine Asem Khalil, Ph.D. LSA annual Meeting Baltimore, 6-9 July
Preliminary notes I: Informal justice refers to parallel systems to settle disputes, outside the framework of the official court system; It consists mainly of sulh (reconciliation) procedures whose objective is to reconcile the conflicting parties on the basis of the customs and traditions of the society; It is necessary to distinguish tribal adjudication (al- qada al-`ashairi), reconciliation committees (Lijan al-eslah), and the legal departments of governorates and security forces.
Preliminary notes II: The present discussion is based on results emerging from a project conducted by the Institute of Law at Birzeit University: 2 years, 13 researchers, 290 interviews, 3 reports, 1 book, 1 article… It is also based on an article published recently by two research supervisors: Samer al-Fares and Dima al-Khalidi.
Sulh procedures (criminal cases) I The offender and his familys seeks the assistance of a mediator to negotiate on their behalf. This mediator then forms a jaha of such people to confront the family of the victim and ask for a truce, or hudna, which is called for only in the case of murder. The victims family is usually represented by a respected elder in the family, and during the public ceremonies, the victims family also assembles individuals from the extended family, clan or tribe, as a show of strength and support.
Sulh procedures II The goal of the jaha is to attempt to reach a truce before retaliation can occur. This initial truce usually last three days and a third, although it can be renewed for a few days longer, and its purpose is to prevent retaliation during the burial and mourning periods. This truce is not enforceable, however, and the victims family does not always abide by it. After this initial truce, the mediators called upon by the offenders family approach the victims family asking for an atwa, best translated as a plea for reconciliation.
Sulh procedures III The atwa comprises the period leading to the final reconciliation, during which a sum is paid that contributes to the final diya (often translated as blood money in English) of the murdered individual. Each atwa lasts 6 months to 1 year, and it can be renewed up to 3 times. Most of the negotiations take place behind the scenes. The atwa ceremony then constitutes a public display of the agreement, wherein a document is written outlining the conditions of the agreement and appointing two sets of guarantors. The conditions put upon the offenders family often include exile from the village or city, and this usually applies to the offender and his immediate male kin, although there are cases where whole clans were exiled and never returned to their original town or village. The atwa document is then signed by all of the mediators present, and it is common for the offenders family to publish them in the newspaper, as a way of making it public knowledge that they are undergoing sulh processes. In honor crimes, procedures are not publicized.
The Interrelation between Formal & Informal Justice: A Historical Overview I British: - established tribal courts in the area of Beersheva to deal with cases between and among tribes is a reflection of their policy of retaining local laws and local leaders in order to avoid opposition. - granted these courts jurisdiction over limited cases, which were sent down by the central courts. - The judges who sat on the courts represented the major tribes in southern Palestine and were appointed with British approval based on their status within their tribes and their knowledge of the customs of the society.
The Interrelation between Formal & Informal Justice: A Historical Overview II Jordanian authorities: - Although ِِJordanian law had established tribal courts among the large populations of Bedouins in Jordan, such courts were not established in the West Bank. - Jordanian law did, however, reflect recognition of the prevalence of an informal system of dispute resolution. The Jordanian authorities played a significant role in sanctioning and even organizing the work of mediators. - The Jordanian Penal Code of 1960 (still in force in the West Bank despite the fact that it has been amended in Jordan) contains several articles that allow for a reduction of the sentence or dropping the case based on a number of mitigating excuses, among which is reconciliation between parties to a conflict.
The Interrelation between Formal & Informal Justice: A Historical Overview III The Israeli Occupation: - Deterioration of the Formal Justice System: - now in the hands of an Israeli military officer; judges and prosecutors were appointed and paid by Israel; military officer interfere in the work of the courts: mistrust of population. - Moreover, there were no efforts made to improve the conditions of the court system. - Popular Recourse to Informal Justice - With the outbreak of the first intifada in 1987, the various Palestinian factions united under one leadership formed islah or reconciliation committees to undertake the job of resolving disputes between individuals based on shared customs and traditions and in the interest of the Palestinian people, as a substitute for the Israeli justice system.
The Interrelation between Formal & Informal Justice: A Historical Overview IV The Palestinian Authority Period I: The PA and the formal Justice system: - The PA took control of the courts; and the PLC adopted legislations in relation to judiciary; - The opening of new courts and the establishment of a strong police force briefly revived Palestinian confidence in the formal system and led to increased recourse to the courts, especially in civil and commercial cases
The Interrelation between Formal & Informal Justice: A Historical Overview IV The Palestinian Authority Period II: The PA and the informal justice system - wide-ranging support for informal means of resolving disputes; - involvement of an array of institutions such as the governorate and the various security apparatuses under the executives control; - PA actors act as mediators or represent sides to a conflict in both their official and personal capacities; - The PA saw the work of mediators as an indirect way to expand its jurisdiction and authority to areas that were not under its direct control according to the Oslo Agreements, such as Area C and most importantly, Jerusalem. - PA organized and supported the informal system through a Tribal Affairs Department and through the governorates, most of which have legal departments dealing with cases that require reconciliation.
The Interrelation between Formal & Informal Justice: A Historical Overview IV The Palestinian Authority Period III: The Second Intifada - Israeli offensives and invasion in the West Bank and Gaza have had a devastating effect on the state of the Palestinian judiciary; - The effect has been a near total collapse of the PA, evident from the mangled remains of bombed-out PA buildings and police stations, including prisons and ministries. - The arbitrary closure of Palestinian towns and villages and their isolation from one another affects greatly the functioning of the courts, whose work has slowed down to a bare minimum. - Under these circumstances, the importance of reconciliation procedures in solving day-to-day disputes between people, whether involving criminal, commercial, family, land or other matters, cannot be underestimated. - Such reconciliation is based more on attempts to prevent the further conflagration of conflicts than on delivering individuals their rights according to the law.
The Interrelation between Formal & Informal Justice: A Historical Overview IV The Palestinian Authority Period IV: - The informal processes of dispute resolution attempt to negotiate the personal right, but they have no power to directly negotiate the public right. Nevertheless, the research has shown that sulh processes influence virtually all criminal cases that go to the courts. - Seen the overload of cases in the courts and the absence of a properly functioning prison system, it is in the interest of the courts to reduce sentences as much as possible, given the general lack of resources to deal with prisoners. - The reconciliation between conflicting parties results in a reduction of the offenders sentence in virtually all criminal cases (mitigating excuses). - Informal system is considered as complementary to the court system, especially in the present circumstances where the inefficiency and lack of enforcement power on the part of the courts has weakened them to the point of virtual inefficacy.
Factors affecting resolution of conflicts I: 1. Actors: the personalities involved in a case play a large role in determining its outcome, both in terms of the mediators involved and the parties to the case themselves: - Traditional mediators, usually respected elders and heads of families and tribes, some of whom consider themselves tribal judges or arbitrators (quda ashaireen); - personalities that consider themselves rijal al-islah, literally meaning men of reconciliation Many of these are products of the islah committees that were formed during the first intifada; - the PAs establishment introduced myriad new actors onto the sulh scene, many being returnees; - The executive branch has managed to engage itself on several levels, through the police, the various security services, the governorate, affiliated political parties and the presidents office itself.
Factors affecting resolution of conflicts II: 2. Societal Status : -in order to resolve the disputes, mediators often had to give in to the demands of the stronger party and encourage the weaker party to yield; -Big families and clans have great influence on the issue of the process;
Factors affecting resolution of conflicts III: 3. The Role of Religion and Religious Affiliation: -an increase in the role of religious principles in resolving disputes; this is an important phenomenon to monitor, especially since the role of the Islamic Shari`a in the Palestinian legal system has been and continues to be a point of great debate over the last decade; -Christians and Muslims resorted to the same informal methods to resolve their disputes and followed the same procedures; sulh procedures considered as becoming customary and cultural; nevertheless, cases where engaged christian as offendor, christian symbols and other christians were targeted rather than the families (Ramalla-Jalazon recent case; deer jreer-Taybeh case)
Factors affecting resolution of conflicts IV: 4. Gender: -Clear absence of a role for women in the resolution of disputes through mediation; -relatively weak status of female victims that reflect the fact that informal justice is male- dominated field;
Conclusive remarks I: Assessments: - The policies of the PA have in many ways reinforced the informal justice system, often at the expense of the formal one; - The last few years, however, have shown these dispute resolution processes to be necessary in the face of an incessant occupation; informal justice is seen as crucial as to maintaining some kind of social order; - Nevertheless, it is necessary to look beyond the present circumstances and contemplate what role the informal justice system can play in a future state, at the same time ensuring that there is a respect for the rule of law and the role of the judiciary;
Conclusive remarks II: Possible interrelation scenarios: - Complete separation between both processes with reciprocal ex-communicating process or takfeer; - Complete integration of both systems into one semi-formal/informal; - Sana collaboratio: where sulh procedures may prepare for and/or complete formal justice system, avoiding retaliation and the extension of violence and counter-violence…
Conclusive remarks III: - By analogy to Informal justice system, or parallel disputes settlement, can sulh procedures serve as conflict resolution mechanism between states or nations? - Keeping in mind the substantial differences between them, both intends to fill the gab of the absence of effective and enforceable formal (state or international) justice system: - both may help to restore pacific co-existence (between individuals or nations); - Both intends to avoid retaliation and deflagration of violence; - In both, accepted compromise prevails over absolute justice; - In both, pacific co-existence prevails over rights based discourse; - Maybe… but then, informal international justice system shall prepare for or be the completion of formal international justice system and not its substitution.