This document provides an introduction and overview of a research project on informal justice systems in Palestine. The research was conducted by the Institute of Law at Birzeit University and aimed to study how informal dispute resolution interacts with and relates to the formal Palestinian justice system. The summary discusses the background and rationale for the research, including Palestine's developing legal system and plurality of legal authorities. It also outlines some of the key findings from fieldwork, such as reasons why Palestinians resort to informal justice and tensions that can arise with principles of rule of law. The research ultimately sought to provide policy recommendations for how Palestine can approach the relationship between its formal and informal justice systems.

1. Informal Justice: The Rule of Law and
Dispute Resolution in Post-Oslo Palestine
Presented to the
Justice Sector Working Group
Palestinian Ministry of Planning & Administrative
Development
Presented by
Jamil Salem
Institute of Law, Birzeit University
Date of Presentation: October 15, 2009
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2. Introduction
One of the Institute of Law’s publications is a book entitled “Informal Justice: Rule of Law
and Dispute Resolution in Palestine- National Report on Field Research Results”. This book
was published in cooperation with the International Development Research Centre (IDRC) in
Arabic language and sections of the book were translated into English language.1 The book was
published in the year 2006.
The research consists of:
1) An introduction to the document.
2) A discussion of the legal background to the informal justice system in Palestine.
3) The results of the fieldwork, divided into 7 parts, each dealing with different aspects of the
fieldwork.
4) The prelude to the recommendations.
5) The recommendations.
6) Appendices including tables, a summary of the case studies, a glossary, and other fieldwork
documents.
The overall aim of this research is to produce policy recommendations on the role of customary
law in the present and future Palestinian justice system. While there currently exists a degree of
coexistence between the formal and the informal justice systems in the West Bank and Gaza,
there remain questions as to the extent and the type of interaction between the two, and the
degree to which this duality ultimately hinders the rule of law. The plurality of the Palestinian
legal culture, encompassing the laws of myriad political regimes, religious authorities and the
various methods of informal dispute resolution, has resulted in a fluidity of authorities wherein
responsibilities are blurred and due process and justice are not always respected.
1
The translated sections of the book can be downloaded from the following link:
http://lawcenter.birzeit.edu/iol/en/project/outputfile/5/8a1ae81849.zip
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3. This research has therefore aspired to propose ways to strengthen the rule of law by ascertaining
the present relationship between the formal and informal justice systems in the field of criminal
law, and by then formulating policy recommendations, based on the findings of the research, on
how these two potentially conflicting systems can be reconciled in a future Palestinian judiciary,
whether by integrating the two, or encouraging the reform of one or both systems. It has
attempted to highlight both the positive and negative aspects of the two systems by revealing the
social dynamics involved and the legal issues that arise from this interaction.
While the end objective of this research is to contribute to efforts to reform the judiciary by
recommending ways to approach the plurality of the Palestinian justice system, the means to
achieving this end are equally important. The intention is also to learn from the experiences of
other countries in dealing with more than one system of resolving disputes. The project therefore
aims to reach not only a Palestinian audience of policy makers and people with a stake in the two
systems. It also aspires to gain the insight of international academics and Palestinian civil
society.
The Research Problem
The rationale for the research stems from the present state of the Palestinian judiciary, which is a
relatively new institution in the Palestinian arena. The system of justice in Palestine has a
checkered and irregular history. Over the last century, Palestinians have experienced several
changes in political and military regimes, and consequent transformations in the legal system.
The Palestinian legal system, only established in the early 1990s with the advent of the
Palestinian Authority, has not developed significantly with regard to the independence of the
judiciary and the rule of law. It is in this context that the Institute of Law chose to undertake this
research to discover the extent to which and the reasons why informal methods of dispute
resolution, outside of the formal justice system, are resorted to by Palestinians. The existence of
this informal system of justice raises serious questions as to the effectiveness of the formal
justice system in advancing the rule of law, given that there is effectively a plurality of legal loci
that has played a part in hindering the development and implementation of a Palestinian law. The
role of the executive in advancing the informal system and attempting to shape it has contributed
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4. to undermining the independence of the judiciary and minimizing its role in resolving disputes is
a key issue here, and is a point of focus for the research. The recent political developments in the
Palestinian Territories, with the passing of President Yasser Arafat and the division between
Fatah and Hamas after the legislative elections held in 2006, have left some uncertainty as to the
future of the Palestinian Authority and the role of the executive in particular. This project is
timelier than ever at this juncture, given the pivotal role certain actors played in hindering the
development of the institutions necessary to implement the rule of law and in encouraging the
persistence and spread of informal dispute resolution mechanisms. It is perhaps now, more than
ever, that the vast efforts of Palestinians to introduce real reforms can be realized.
This study is ultimately an essential component for any future attempts at judicial reform. Not
only will it serve to inform policy makers of the current status of both the formal and informal
justice systems. It will also provide insight into how the judiciary can be tailored to take into
account the Palestinian legal tradition, both formal and informal, and thereby make any proposed
reforms more relevant to the Palestinian reality, and in turn, more likely to succeed. It is evident
from the fieldwork conducted that informal, socially-sanctioned methods of resolving disputes
are integral to Palestinian notions of justice, and play a vital role in easing societal tensions
resulting from disputes between individuals.
The importance of the project lies in the absence of accurate and up to date information on the
scope of informal justice practices and the extent of their relationship to the formal judicial
system. While the rationale for the research is based on the need to reform the ailing Palestinian
judiciary, its approach is innovative in its incorporation of both legal and sociological
perspectives to study the phenomenon of informal justice as a significant part of the Palestinian
legal field as a whole, formal and informal. The questions that arise when approaching the law
from a sociological perspective give voice to the whys, hows and whos that are often
undervalued or overlooked altogether by purely legal-minded reformers. While it is generally
assumed that there is a correlation between the weakness of the judiciary and the preponderance
of the informal justice system, the research conducted to date has shown that the reality is much
more nuanced. The factors that influence peoples’ choice to resort to informal methods of
resolving disputes go beyond the formal judiciary’s inefficiency and enter into the realm of
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5. religious, political and societal issues. Indeed, many actors in both systems perceive the two
systems as complementary rather than conflicting, as is evidenced by a significant degree of
cooperation between the two, whether formally recognized or not. The informal system itself has
in fact been weakened in many ways, in part for the same reasons that the formal system has
struggled. The executive’s tendency to involve multiple executive organs in the resolution of
disputes without a clear distinction of authorities, and the efforts of other groups to gain some
influence over the informal justice system has in effect fragmented the system more than in
previous historical periods.
The research has therefore aimed to answer a range of questions regarding the nature and
expanse of the informal justice system and its relationship with the formal system. In the course
of the fieldwork, new questions arose as new information was gained. These were integrated into
the fieldwork as they arose. The objective of these questions is as much to understand the various
societal factors at work and the way different sectors of society are affected as it is to gain a
technical and procedural understanding of the systems of justice at work in Palestine. In
particular, a major concern of the study has been to reveal the differences in the way social
distinctions including gender, age, financial and social status, location (village, city or refugee
camp) and political affiliations, affect the how justice is delivered on the part of the two systems.
The fieldwork conducted has addressed these questions through in-depth interviews with
individuals involved in resolving disputes, whether formally or informally, and through a number
of case studies that illustrate the intricate factors involved in these dispute resolution processes.
The policy recommendations that evolved from the research were based on a comprehensive
treatment of both the legal and sociological issues involved in this research.
Research Findings
The fieldwork largely confirmed many of the assumptions of the research, while further
illuminating important ambiguities, and raising additional questions as to the nature of the
relationship between the formal and informal justice systems and the perceptions of the two
among Palestinians in general. In gearing towards writing recommendations about how to
approach a situation in which the resolution of disputes occurs in multiple, often overlapping,
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6. sometimes contradictory arenas, the research team identified the main ideas arising from the
fieldwork that explained the prevalence of the informal system and the reasons for which people
resort to it. The oft repeated notions that the informal system is less costly and more timely than
the formal system, that the reason for its prevalence is rooted in the tribal nature of the society,
that it works towards maintaining social order in a situation where a central authority is unable to
do so and that it represents the culture and traditions of the society were all examined more fully
in order to challenge these assumptions and arrive at some conclusions as to the positive and
negative aspects of the two systems. In order to do so, the team came to a consensus that the
basis for such determinations would be the principles of the rule of law, as expressed in the
Palestinian Basic Law, all of which are necessary to achieve a democratic society that guarantees
the rights and freedoms of its citizens and ensures their equality before the law. The main
principles of the rule of law were thus laid out and the points of conflict between principles of
the rule of law and the informal justice system were identified, as follows:
1- The principle that laws should be presented in a clear and unambiguous manner, in order
to prevent different interpretations and confusion as to the intent of the legal text. This is
also related to the fundamental principle that there is no crime or punishment in the
absence of a legal text (Basic Law, Article 15).
2- The publication of the law in a manner that makes it accessible to the public (Basic Law,
Article 116).
3- The principle of equality of all citizens before the law, and without discrimination based
on color, religion, gender, political affiliation etc. (Basic Law, Article 9).
4- The principle of election by citizens of their representatives, which ensures a democratic,
representative government and political pluralism (Basic Law, Article 5).
5- An independent, unbiased judiciary that monitors the executive and legislative authorities
and ensures the rule of law.
There are three main areas where these principles are contradicted by the procedures undertaken
by informal dispute resolution processes. Firstly, the punishments meted out by informal
mediators pose several problems. The fact that they are based solely on custom and differ from
those provided for by the law is contrary to the principle that there is no punishment without a
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7. legal text. The collective nature of punishments, moreover, contradicts the notion that individuals
are not responsible for crimes they did not commit. Moreover, the fact that resolutions arrived at
through informal mediation differ from area to area and from case to case is contrary to the
principle that laws should be public knowledge and clear enough to avoid significant variances in
interpretation. Secondly, the influence of various factors on the resolution of a case, including
social status, gender, age, and personal associations, challenges the principle of equality of all
citizens before the law. Such factors ultimately affect marginalized groups disproportionately.
Thirdly, the use of legally unrecognized mechanisms as evidence undermines the right to due
process, the presumption of innocence and the right to legal representation.
From this point of departure, the issues cited above were examined in more detail.
The fieldwork revealed that the issues of time and cost were two main reasons cited among all
groups interviewed for why people resort to the informal system. The expedience of informal
mediation is all the more evident when the inefficiency of the courts is considered. It is widely
known that the backlog in the courts results in cases being held up for months if not years, and as
one judge noted, the number of judges at present is far too few to deal with the excessive case
load. Mediation, on the other hand, is initiated as soon as a conflict occurs, and measures are
taken to secure a truce directly with the parties involved and thus prevent retaliation by the
victim’s family for the crime committed. It is this immediate and personalized response that the
state authorities, whether it be the police, the state prosecutor, or the courts, are unable to
provide, especially in the current circumstances. On the other hand, the formal court system is
inherently more time consuming for reasons having to do with procedural requirements, such as
investigation of a crime and the collection of sufficient evidence to prosecute an individual.
These procedures are ultimately necessary to ensure the highest degree of justice. The speediness
of the informal system is therefore often at the expense of justice, a point which was confirmed
by the fieldwork.
With regard to cost, however, the widely held perception that the informal system is less costly
in the long run is not as clear cut. Although the informal system is supposed to be free of cost to
the parties involved as far as the work of the mediators goes, it was confirmed by many
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8. respondents that some mediators do ask for compensation for their work, despite the fact that all
the mediators interviewed frowned upon such practices and denied their own culpability. There
is a general misunderstanding about costs incurred by bringing a case to the courts. While
bringing civil cases to court, such as those dealing with land and property issues, incurs certain
administrative expenses and requires both parties to hire lawyers, this is not the case in criminal
cases, where the state prosecutor is responsible for representing the public right of the state, and
the defendant has the right to legal representation provided by the state.
The perception among many respondents that the informal system provides monetary
compensation to the victim that the formal system reveals a lack of awareness of the fact that
individuals can bring civil cases to court for physical or psychological damage caused as a result
of a crime, even when the state has prosecuted and punished an individual for that crime. Such
civil cases award compensation to the victim, according to the degree of damage incurred and
according to the law. Nevertheless, initiating such cases is often costly for less affluent
individuals, despite the fact that such costs are eventually covered by the responsible party.
Moreover, the exaction of such compensation is often much faster via the informal system,
which often awards high amounts of compensation determined by the mediators and theoretically
agreed on by the parties, sometimes covering medical expenses incurred as a result of the crime,
and the payment of which is ensured by the offender’s guarantors.
With regard to the commonly expressed notion that the informal system is complementary to the
formal justice system, the fieldwork revealed that in fact, the informal system can act either as
complementary or as a substitute to the formal system. The former relationship consists of the
informal system acting to prevent the further conflagration of a conflict without passing
judgment or exacting a punishment. It is often the case, however, that the informal system acts as
a practical substitute to the formal system by pronouncing punishments on the offender and his
family, and often by obliging the offender to relinquish his legal rights, which is ultimately
contrary to the principles of the rule of law. In some cases, undertaking informal dispute
resolution procedures obviates the intervention of the police and the state prosecutor, and
consequently the judiciary, from hearing the case.
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9. Besides the more timely resolution of disputes and lower initiation costs that informal justice
provides, the fact that the informal system offers a degree of social order in a context where other
authorities are unable to do so constitutes a positive aspect. The informal system’s ability to
function in all circumstances is also an important factor that makes it practically necessary in the
current situation, where the proper functioning of the courts is constantly compromised by the
policies of the Israeli occupation. Whereas the performance of the courts is predicated on a
minimum degree of political stability, the informal system can function, via individual
mediators, through closures, checkpoints, and general instability, though not without some
inconvenience. The general flexibility of the informal system, which responds to and resolves
conflicts on the basis of many factors, including the individuals involved, the area in which it
occurs and the personal relationships at play, can be considered both a positive and negative
aspect, as practical resolutions sometimes take the place of just resolutions, as confirmed by the
fieldwork. The courts, while less flexible because of strict procedures and laws they are obliged
to follow and apply, nonetheless provide assurances that a just solution will be reached that is
based on the equality of the parties and sufficient evidence, in theory at least.
The tribal nature of the society was also a common justification for the prevalence of the
informal system and the need for its continuation. The idea that tribalism is a main determinant
in the life opportunities of Palestinians is challenged on the basis that in fact, there are multiple
factors that determine an individual’s opportunities with regard to education, employment,
marriage, etc. Indeed, factors such as class, occupation and gender play a larger role in
determining access to education and health care, participation in the society, the status of the
spouse, the age of marriage and the number of people in a family than do tribal affiliations.
While tribal or clan affiliation constitutes one such factor, it is argued that clan affiliations are
important in a limited number of situations, namely in gathering political support, as is the case
in local and general elections, which rely significantly on mobilizing clan-based relationships,
and in the process of informal dispute resolution, which requires the support of the extended
family and clan to increase the negotiating power of the parties and to contribute to financial
obligations. Religious and social occasions are another manifestation of clan relationships. These
few circumstances where extended and clan-based relationships play a role are contingent on the
area and the type of community at play. As confirmed by the fieldwork, therefore, such
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10. relationships are more prevalent in the southern area of the West Bank, and in Gaza, where much
of the population originates from the Beer Sheva area, notable for its historically Bedouin
population. Likewise, dependence on extended family relationships is more prevalent in villages
and less so in cities.
Ultimately, the influence of tribal affiliations differs from area to area. The term “tribalism,”
however, is misguided given the fact that the tribe no longer constitutes the main living unit of
the majority of Palestinians. “Tribalism” is often used to describe other kinds of familial
relationships and the practice of favoritism or patrimonialism for which the Palestinian Authority
has become well known. Indeed, the PA can be credited for having encouraged a dependence on
“tribalism” through its promotion of the informal system and its failure to support the formation
of an independent and efficient judiciary. The effect of the Israeli occupation cannot be
underestimated here as well, given its hindrance of the state-building process and the general
distrust of the law that it has engendered among generations of Palestinians, who prefer to resort
to informal relationships to meet their needs.
Finally, the most commonly cited factor for the necessity of the informal justice system among
all groups interviewed was its role in maintaining social order and preventing the conflagration
of conflicts in the absence of an effective central authority. While this was confirmed in large
part by the fieldwork, it is also evident that the resort to the informal system also acts to
reproduce and sustain existing power relationships in the society, based on class, gender and age.
This is evident in the social position of mediators (all male, usually elders), who were all proved
to be from relatively wealthy, large families or clans, and who had extensive networks of social
and political relationships. Their connections with official individuals and institutions give them
legitimacy and establish them as a first resort to directly resolve conflicts. The support that
public authorities give to mediators in turn widens the formers’ own social and political networks
and strengthens their positions. This is evident when considering the involvement of public
officials, including governors, security officials, ministers, and legislators in public reconciliation
ceremonies, which allows them to have a public image locally, and nationally when such
ceremonies and their attendants are announced in the newspapers. The relationship between
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11. public authorities and private mediators is thus reciprocal in the legitimacy, exposure, and
consequent authority it provides to both.
Recommendations
The recommendations ultimately focused on the main problems with the informal system of
dispute resolution, the formal justice system and the interaction between the informal system and
governmental and non-governmental institutions. The recommendations, are derived from the
research findings and respond to the issues identified by the research team as contradicting
principles of the rule of law and compromising the independence of the judiciary and its proper
functioning. A general statement preceding the recommendations recognizes and supports the
myriad studies produced by Palestinians calling for reform of the judiciary and other official
institutions and the implementation of the rule of law. The recommendations ultimately support
the objective of building a modern democratic state that respects the rights of its citizens and
functions according to the rule of law. While they are framed generally, they address specific
concerns identified by the research.
They are summarized as follows:
1. There should be a legislative policy that recognizes and reflects a knowledge about the
informal system and its procedures in order to allow for the possibility of codifying
positive aspects of the informal system and excluding negative aspects.
2. The punishments that are often pronounced in reconciliation agreements, such as those
that impose collective punishment (exile of the offender and his family, financial
compensation), contradict the Basic Law and legal principles including individual
responsibility for a crime. The passing of judgements in reconciliation processes should
therefore be ceased. The Penal Code should penalize those responsible for imposing such
decisions in order to curb the phenomenon.
3. Given the involvement of the governorates in organizing and providing assistance to the
informal justice system under the pretext of maintaining public order, it is recommended
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12. that a law be formulated defining the jurisdiction of the governorates and ensuring that
they do not challenge or undermine the independence of the judiciary.
4. Given that one factor for peoples’ resort to the informal system is the amount of time it
takes for a case to be heard by the courts, it is recommended that suitable mechanisms be
introduced to the courts to ensure the speedy consideration of cases and to aid judicial
examination and the administration of case files.
5. Given the positive role that customary reconciliation processes can play in maintaining
social peace, it is recommended that the Penal Code explicitly identify reconciliation
agreements as mitigating circumstances that can be considered to reduce the penalty of
the offender, on condition that it is not contrary to the will of either party and the process
was undertaken of their own choice, that it does not include any judgements or penalties
on the offender or his family, that it is subject to review by the judge, that the sentence is
not reduced below the minimum sentence for the crime committed, and that it does not
prohibit the victim from pursuing his/her right to bring a civil case to court for any harm
incurred.
6. The research has shown that the Penal Code in force in the West Bank includes clauses
that allow for a reduction in sentence for crimes committed in a state of rage, often used
in cases of revenge for a crime committed. In order to limit such retaliatory crimes, it is
necessary to increase the penalty for such actions, which amount to an attack on the
judicial system and a lack of respect for its authority, the right of the state to punish
criminal offenders, its responsibility to maintain public order, and which encourage the
phenomenon of taking the law into ones own hands. Likewise it is necessary to increase
the sentences for crimes allegedly committed in defence of family honour, or so-called
honour crimes, the perpetrators of which often receive minimal sentences on the basis of
such clauses.
7. The research revealed that a significant number of Legislative Council members
undertake the role of mediators in resolving disputes. Such activity should cease in order
to facilitate the rule of law.
8. Given that the costs of the formal system were cited as a reason for the resort to the
informal system, the Bar Association and other legal civil society organizations should
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13. provide legal assistance to those without means to hold the state responsible for fulfilling
its obligations in this regard (providing counsel, etc.).
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