Al-Jazeera / January 25, 2021
Rights groups argue tribal law fails to provide for fair trials, discriminates against women, and imposes collective punishment.
Occupied West Bank – Going home after seven years in an Israeli jail was bittersweet for Mohammed Ennabi. Several months into his sentence in 2009, his father killed another Palestinian in a brawl.
While neither Ennabi nor his siblings were connected to the crime or convicted in a court of law, the entire family was ordered to leave their homes and abandon their properties and businesses in the village of Silwad, east of Ramallah.
When Ennabi was released from jail in 2016, the house he was born and raised in was off limits; torched twice, vandalised and abandoned.
“We became refugees in 1948 and got displaced in 1967 because of the Israeli occupation, then again we were expelled from our hometown by our own countrymen,” Ennabi said.
“Now we’re scattered, my brothers and I, in rented apartments in and around Ramallah unable to step foot in Silwad.”
“Jalweh” is the eviction of the family of the perpetrator of a crime from their homes and exiling them outside the victim’s area.
A traditional practice, it is often imposed by tribal leaders in murder cases under the pretext of stopping the bloodshed and maintaining civil peace.
Palestinians have resorted to the social phenomenon of settling disputes outside state courts as the alternative to dealing with Israeli courts seen as being set up by an occupying force or with Palestinian courts which people are trusting less and less. Tribal justice is seen as the alternative by many – but it comes at a price.
Tribal justice derives its provisions from tribal traditions and cultural heritage, but many argue that it undermines the rule of law.
Human rights groups say it compromises justice for stability, does not provide for fair trials, discriminates against women, and imposes collective punishment.
“While rulings aim at preserving blood, they often result in violating the rights of innocent people,” Majed Aruri, director of the Commission for the Independence of the Judiciary and the Rule of Law group, told Al Jazeera.
“Some [tribal] judges demand high rates for the solutions they help bring about. That creates a situation where we have a conflict of interest that affects their judgement,” he said.
‘Means for humiliation’
Trust in the Palestinian judiciary declined considerably over the past 10 years, with less than half of Palestinians trusting the Palestinian judicial system.
A recent Palestine Transparency poll showed that two-thirds of Palestinians believe there is corruption in the courts and public prosecution.
“Courts are being perceived as means for humiliation. Disputes linger and lawsuits pile up in courts and get delayed,” Aruri said.
About 85,000 new cases are filed annually, whereas there are 251 judges in all levels of litigation in Palestine, according to figures obtained from the Higher Judicial Council.
For the 43 percent of Palestinians who trust informal justice, it provides timely solutions that are implemented, particularly because the Palestinian Authority has limited or no control over 62 percent of the occupied West Bank – the area under full Israeli control as per the Oslo accords.
In Huwwara, locals have been shrugging off fires set in three buildings on the outskirts of the village south of Nablus since last June.
They belong to the families of nine Palestinians charged with the killing of three others in a street fight end of May 2020.
The homes were initially burned in foret al-dam, the time period immediately after a crime is committed and before atwa takes place – which is when the family of the perpetrator admits publicly to a crime and expresses readiness to pay reparations.
During foret al-dam, which translates to “when the blood boils”, if the family of the victim attacks properties of the family of the perpetrator, damages are not accounted for.
The flames rising from the house of the killer of her brother and two nephews is nothing compared to the fire raging in her heart, Rahmeh Khader told Al-Jazeera.
“I have a problem with all of them. Until atwa is achieved, all members of the killer’s family are all legitimate targets,” she said.
Not being involved in the attack is no reason for Khader to spare them from guilt.
“I don’t want to see any of them here; let them get punished for not raising their children well,” she said.
Mohammed Hazeem has been forced out of Huwwara. His crime: being the perpetrator’s cousin.
He told Al Jazeera the victims’ family had demanded more than $1m to sit for an atwa, the first step in reconciliation, after which other payments arise before a sulha – a full reconciliation – is achieved.
On the victims’ side, the price of a sulha is to waive personal rights in courts and not to retaliate.
“We’re being punished for a crime we didn’t commit,” Hazeem said. “The case will take years in court and without a sulha there’s no solution – not for those in jail nor for us outside.”
A blind eye
The Jordanian Penal Code of 1960, which is applied in the occupied West Bank, allows for a mitigated sentence to the minimum penalty following a sulha.
While PA officials rarely miss an opportunity to talk about the rule of law and establishing a civil state, intentionally or not, the Authority has not only turned a blind eye but has empowered a parallel legal system that fills in where the government cannot.
Conciliation committees have been formed in every governorate, and a department tracks tribal affairs in the Ministry of Interior.
Twisting the knife, the PA has itself fallen back on tribal justice to settle conflicts involving police officers at times.
“While tribal justice has become part of the PA structure, it is not subject to it,” Aruri said. “For a state to resort to tribal justice, it means the state admits it is unable to apply the law.”
Rania Zabaneh is a producer in Al-Jazeera’s Ramallah bureau