Written by: Ammar Jamous
Legal Researcher
The tribal authority versus the rule of law: an old and new equation in the Palestinian reality. Every time there is a serious escalation in the intensity of between the parties to a conflict, the discussion is renewed in societal and official national circles as well as in the donor community. During these times, the tribal authority emerges as a major actor in violence and protection. The authority resolves disputes between the parties according to custom and tradition. This is counterbalanced by a decline in the ability of the state authorities to provide protection to the people and preserve their property to resolve disputes between them in accordance with the principle of the rule of law.
The unfortunate events of the city of Hebron, which occurred at the end of July 2021, led to a conflict between the tribal authority and the rule of law. On 27 July 2021, Basil Al-Jabari, was shot dead in the center of Hebron city resulting in a wave of violence, such as shooting at shops and homes and vandalizing and burning property. This is often met with tolerance by everyone on the basis that it is done in a moment of anger. Due to the security services’ inability to contain the events, Palestinian President, Mahmoud Abbas, became prompted to form a committee headed by the tribal authority to resolve and deal with the events that occurred in the city of Hebron.
Once again, the Palestinian Authority uses the tribal authority to solve social crises. This is not surprising, since it assumed the powers of governance and administration in the West Bank and Gaza Strip under the Oslo Accords in 1993. The Palestinian Authority supported and invested in the tribal authority. The late President Yasser Arafat issued a decision to establish a commission for tribal affairs in 1994 that was directly affiliated with him. In 2012, President Mahmoud Abbas issued – without legal basis – a decision to establish a higher commission for tribal affairs in the southern governorates (Gaza Strip). This was followed by another decision in 2019 to establish a supreme committee for tribal affairs in the northern governorates (West Bank), which was soon canceled after about two months due to some tribal committees’ protest of their non-representation.
In addition, there is an administration in every Governorate concerned with tribal reconciliation with different names, which employs members of the tribal committees in certain disputes and supervises their work. In some cases, official figures attend tribal committees’ ceremonies, and law enforcement authorities are used in the service of consensual or imposed tribal solutions. This suggests official support for these social organisations and their work with consensual or imposed tribal solutions – just or unfair – and have a legal status in the regular judiciary. Whereas, the existence of a tribal reconciliation instrument, under the laws in force, is a reason for mitigating the sentence of the convicts or for releasing the accused who are being held in pretrial detention. But the opposite does not happen, as the regular judiciary has no effect on the conciliation or the tribal judiciary.
The official support for the tribal authority comes from the Palestinian Authority, which certainly contributed to their growing power, despite the PA’s declared official discourse in establishing a democratic state in accordance with the principle of the rule of law and the separation of powers embodied in the National Declaration of Independence in 1988 and in the amended Basic Law of 2003. Palestinian laws do not support any legal basis for the tribal authority’s role in conflict resolution, the same role that contradicts the basic principles of the rule of law and involves serious violations of human rights and fundamental freedoms, especially with regard to equality and fair trial guarantees, the prosecution of an offence only once, the prohibition of collective punishment and the principle of criminal legality. In addition to its apparent contradiction with the principle of separation of powers, as it exercises the function of the judiciary with the support and guidance of the executive authority, prohibiting it and others from interfering in judicial affairs.
This contradiction in the Palestinian Authority’s position is because several reasons and the most important of which are: the weakness of the law enforcement agencies and their inability to control all Palestinian areas due to the Israeli occupation, forcing them to rely on the tribal authority to fill the void. The Authority is also working to strengthen its influence to contain any other social authorities and keep them under their wing. The support of the Authority itself contributed to the tribal judiciary at the expense of the rule of law and the judiciary, and the discussion of suspicions of corruption led to the people’s low confidence in them, which was offset by the people’s high confidence in tribal solutions and their preference over the authority of law and the judiciary.
It seems that the official discourse of the Authority regarding the rule of law and the civil state exists only on paper. It is not in its interest to show the world in a way other than the principle of the rule of law, but if this discourse is not translated nationally quickly and honestly with respect for the law and freedoms and the restoration of people’s confidence in the law and the judiciary, the situation indicates a threat to civil peace and undermines any hope for establishing the state. When the rule of law is absent, the tribal authority will have the upper hand, while others remain exposed to weakness, injustice and humiliation of dignity.