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Palestinian Informal Justice

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Palestinian Informal Justice
Thriving in the Shadow of Colonialism

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An Official Hearing in a Mandate Courtroom

Proceedings in the district courtroom of Beersheba, attended by Sir Harold MacMichael (the high commissioner) and Aref al-Aref (the district officer).

June 1938
Source: 
Matson Photo Service, Library of Congress

Throughout the modern period, Palestinians—particularly those outside of urban settings—have used various models of informal or extralegal justice to adjudicate disputes and address transgressions of social norms without turning to state institutions like police and courts. These non-state avenues of justice vary according to time, place, and community. They are described by different terms—customary law (‘urf), tribal adjudication (al-qada’ al-‘asha’iri), communal reconciliation (sulh)—but in all cases they share the characteristics of maintaining social order in communities that have tense or tenuous relationships with state authority. Although informal justice in Palestine (as in other Arab societies) is often associated with nomadic communities of Bedouin, it is also common among settled Bedouin and non-Bedouin communities. Palestinians seeking to resist or overturn colonial authority have sought in such practices a model of indigenous justice; in general, however, informal justice privileges male authority within extended kinship groups and thus reflects and reinforces patriarchal social norms.

Restoring Social Harmony

Palestinians continue to use informal justice to address a variety of violations of social order, from murder and assault to disputes over property to acts seen as undermining the status or honor of an individual, family, or community. In all cases, what distinguishes informal justice is the understanding that injury is socially embedded; by extension, any attempt to make amends must therefore engage all affected individuals. Whereas official justice seeks to punish an individual for his or her transgression of state authority, embodied in the law, Palestinian models of informal justice seek to engage all parties to a dispute to bring about a resolution that reestablishes social harmony. Mediators, empowered by disputant parties and the community at large, work to reach acceptable and lasting resolutions based on communal norms. Informal justice is flexible, but also formulaic, adhering to precedent on matters such as the procedures that organize interactions between mediators and disputants, the period of negotiation, the degree of co-liability within kinship groups, the financial obligations entailed by particular violations, and the rituals that signify a dispute’s resolution. Mediators’ status is derived from age, affiliation with a large or powerful family or tribe, religious authority, or access to state power, but also earned by experience in resolving in disputes. The public nature of resolutions ensures parties’ adherence to the agreements made.

Although individual instances of informal justice may take place without any state intervention, informal justice as a system in modern Palestine has developed in relation to state institutions. Palestinians in the past two centuries have been subject to a dizzying array of shifting legal regimes, but the state’s relationship with Palestinian informal justice have been determined by political and not legal factors. These include state capacity and the degree of governmental penetration into rural and pastoralist communities; the desire of state authorities to cultivate local elites as agents of indirect rule; and Palestinian communities’ willingness to engage (or resist) state authorities.

Ottoman and Mandate Periods

Under Ottoman rule, rural and nomadic Palestinian communities frequently turned to informal justice to resolve disputes when state courts were either difficult to access or held out little hope of swift and effective justice. As part of a broader Ottoman effort to exert greater control over the tribes in southern Palestine, the Ottoman government established a management council to deal with conflicts in the Beersheba district. In areas that were known as centers of rebellion against the centralizing Ottoman state, such as Hebron, the authority to mediate disputes and impose judgments became associated with powerful families who then passed down this role as a kind of inheritance.

During the Mandate period, British administrators established tribal courts in the Beersheba district, appointing individuals from each of the major tribes to serve as judges. Additionally, district officers, high-ranking police, and other government agents involved themselves in informal justice, bringing disputant parties together; arranging mediators or serving as mediators themselves; threatening to punish tribes, villages, or families that engaged in retaliation; or releasing prisoners in order to facilitate reconciliation. British administrators crafted legislation and British judges formulated decisions, too, based on their Orientalist understandings of “custom” (including various forms of informal justice) among Palestinians. Ultimately, Mandate officials tried to manipulate informal justice to maintain general social order, to empower pliant local intermediaries, and to justify the violation or suspension of state law when convenient.

However, Palestinians engaged in the 1936–39 revolt against British and Zionist colonialism employed locally rooted practices of informal justice in their attempt to boycott colonial institutions—including British Mandate police and courts—and adapted these systems in their efforts to establish institutions of revolutionary justice and impose order on rebel forces. In the wake of the revolt, too, Palestinians addressed the uprising’s internecine violence through communal reconciliation, sometimes facilitated by British officials, but frequently outside the scope of the Mandate authorities.

Between 1948 and 1994

After 1948, Palestinians continued to rely on informal justice when access to state justice was either practically or politically problematic. Egypt maintained a light footprint in the Gaza Strip; Egyptian administrators met regularly with tribal judges and other local notables, endorsing resolutions reached through informal justice, which the population often found cheaper and quicker than working through official institutions. In the Jordanian-ruled West Bank, informal justice became increasingly formalized through legal and administrative measures that incentivized the resolution of cases outside of state institutions. This reflected, in part, Jordan’s greater reliance on and accommodation of tribal groups; it also allowed the Jordanian government to cultivate allies among notable families in the West Bank.

Palestinians within the territories controlled by Israel after 1948 and in the Israeli-occupied West Bank and Gaza Strip after 1967 turned to informal justice as a way of avoiding or rejecting Israel’s colonial state apparatuses. Just as importantly, however, extra-legal methods of conflict resolution were also frequently more effective, efficient, and economical than an Israeli system that subjected Palestinians to military rule, denied them full rights, and viewed them as internal enemies to be controlled rather than citizens to be served. Absent a legitimate official alternative, informal justice served local Palestinian needs. However, like Britain before it, Israel also sought to manipulate informal justice to sow seeds of dissension within Palestinian communities, to cultivate and empower intermediaries, and to promote Orientalist narratives that cast Palestinian communities as mired in premodern patterns of feuding, patriarchy, and lawlessness. And in another parallel with the Mandate period, Palestinians engaged in a widespread popular uprising—in this case, the first intifada—turned to communal reconciliation and tribal arbitration in their attempts to maintain order and internal cohesion in the context of a collective struggle to disengage from and ultimately deconstruct Israeli state institutions.

Informal Justice and the Palestinian Authority

The Palestinian Authority (PA), established in the 1990s as a result of the Oslo Agreement, made some attempts to formalize the relationship between informal justice and its quasi-state institutions, primarily through the department of tribal affairs (established in November 1994). The PA’s inability to assert itself officially in Area C and Jerusalem—where it was denied such a role by Israel—as well as its general underdevelopment of independent judicial institutions also contributed to the expansion of informal justice and the empowerment of individuals who derived their authority within these arenas. After the outbreak of the second intifada in 2000, Israel (and its international supporters) actively undermined the PA, subjected Palestinian communities to atomization and fragmentation, and fostered Palestinian political infighting and fragmentation. In the absence of official institutions to uphold a legitimate legal order, Palestinians relied on kinship and other local networks for social support, including dispute resolution and maintenance of social order.

The persistence of informal justice among Palestinian communities is thus largely attributable to the continued denial of Palestinian sovereignty. It has also been an avenue through which colonial regimes, and others seeking to build or extend their power, have sought to cultivate local intermediaries and maintain indirect rule. Local notables have sometimes used informal justice to reaffirm and consolidate their social and political status, thereby reinforcing patriarchal social structures and norms. For ordinary Palestinians, meanwhile, informal avenues may promise justice that is speedier, less costly, and more comprehensive than what state institutions offer. And periodically, particularly in moments of anticolonial insurrection, Palestinians have looked to long-standing practices of customary law, tribal adjudication, communal reconciliation, and other practices and institutions of informal justice as part of broader efforts to disengage from state institutions and build alternatives that derive authority from their communal orientation and their roots in an indigenous order predating colonialism.

AW

 

Selected Bibliography

Birzeit University Institute of Law. Informal Justice: Rule of Law and Dispute Resolution in Palestine: National Report on Field Research Results. Birzeit: Birzeit University, 2006.

Bisharat, George. Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank. Austin: University of Texas Press, 1989.

Fares, Samer, Feras Milhem, and Dima Khalidi. “The Sulha System in Palestine: Between Justice and Social Order.” Practicing Anthropology 28, no. 1 (Winter 2006): 21–27.

Khalil, Asem. “Formal and Informal Justice in Palestine: Dealing with the Legacy of Tribal Law.” Études rurales 184 (2009): 169–83.

Lang, Sharon. “Sulha Peacemaking and the Politics of Persuasion.” Journal of Palestine Studies 31, no. 3 (Spring 2002): 52–66.

Shalhoub-Kevorkian, Nadera, and Suhad Daher-Nashif, “Femicide and Colonization: Between the Politics of Exclusion and the Culture of Control.” Violence against Women 19, no. 3 (2013): 295–315.

Winder, Alex. “Anticolonial Uprising and Communal Justice in Twentieth Century Palestine.” Radical History Review 137 (May 2020): 75–95.

Wing, Adrien Katherine. “The Intifada: The Emergence of Embryonic Legal Mechanisms for Palestinian Self-Determination.” Arab Studies Quarterly 15, no. 4 (Fall 1993): 63–82.

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