How to reshape Palestinian courts
BETHLEHEM, WEST BANK — Nakhleh Abu Eid sold some land to Hanna Murrah. Mr. Murrah was angry because, as it turned out, he wasn't allowed to build on the land he had bought: It was too close to an Israeli road crossing the West Bank.
A heated dispute ensued. One day, while the two men were arguing about the deal, Murrah picked up a screwdriver and stabbed Mr. Abu Eid in the hand.
A 2-1/2 year court battle ensued, bringing them no closer to resolving their differences. So the men decided to go the old-fashioned route: turning to a unofficial reconciler who brokers a sulha, a sort of micro-peace between the two parties.
Now they're ready to make amends.
But for Palestinian reformers, that's not the model of justice they want.
The Palestinian people have a court system that has long left them in limbo. It's cobbled together from a mix of traditional methods, borrowings from neighboring Egypt and Jordan, which ruled the West Bank and Gaza Strip until Israel occupied them in the 1967 war - as well as a smattering of British and Turkish law. More recently, secretive state security courts with little accountability have made justice an even cloudier affair.
Today, however, as part of the US-backed democratic reform program, a modern, unified court system is getting a push as part of the Bush administration's road map for Middle East peace last year.
Results so far seem mixed. Some reformers say that state security courts, personal influence, and dismissal of cases after a sulha are all things of the past.
"A sulha will reduce the punishment, but it does not set the man free," says Yousef Nasrallah, the young chief prosecutor of the Bethlehem district court.
In traditional Palestinian society, even a murderer can make amends if the family of the victim and the family of the perpetrator get together for a sulha. Apologies and gifts of cash and livestock are offered to the aggrieved family, who then withdraw their complaint.
But now, the courts are no longer letting the sulha be the last word.
"We have many crimes that call for capital punishment, for example. If the family of the victim decides to
forgive the person, instead of capital punishment, we'll give life in prison," says Mr. Nasrallah, speaking fluent English and wearing a stylish pinstripe suit with a blue silk tie.
In the hallway outside, a man shouts out names of cases to be heard this morning at the Bethlehem courthouse, recently renovated and computerized with funds from USAID.
"There is the private right for justice, but there is also a public right," he continues. "We can't release every accused criminal just because there's been a sulha."
Despite persistent Israeli-Palestinian violence since the start of the new intifada three years ago and the increasing uncertainty of the prospects for the emergence of a Palestinian state - according to the US timetable - by 2004, Palestinian officials say some reforms are progressing.
Yet some matters appear to be taking turns for the worse.
This January will mark a decade since Yasser Arafat left Palestine Liberation Organization headquarters in Tunis and was allowed into the West Bank and Gaza Strip as part of the Oslo Accords. His nascent Palestinian Authority inherited a chaotic legal system: the West Bank's laws were based on Jordan's, and Gaza's were based on Egypt's - the two countries which ruled those territories before 1967.
Since Mr. Arafat's return, some say, his word has been virtual law. His order has been enough to have those he wished put in jail, from Islamic militants to pro-democratic critics to journalists who tried his patience.
Now, judicial reformers say that the Palestinian president no longer has unqualified say-so. The Palestinian legislative council passed an independent judiciary code last year that shifted powers into the hands of a high judiciary council, an attorney general, and the Ministry of Justice.
"He cannot just order," says Zuheir Sourani, the chief justice of the Palestinian court system, of the Palestinian president. "He can ask the district attorney for an arrest, and if there is evidence, the person will be arrested."
Mr. Sourani, who has worked as a Palestinian lawyer and judge in Gaza since the late 1950s - he has served under Egyptian, Israeli, and now Palestinian administrations - says the recent changes are remarkable. A system of secretive "state security" courts, which were able to hold suspects without trial or immediately convict and sentence them without a lawyer, was abolished in January, he says.
But some Palestinians deny that the court system is improving and that the state security courts have been abolished.
"We don't feel that, so far, the Palestinian Authority has really started creating any reforms in the judicial system," says Bassam Eid, chairman of the Palestinian Human Rights Monitor Group.
Mr. Eid says that the PA has used conflict with Israel as an excuse for failing to adopt real judicial reforms. "Several decisions came from the high court, and the Palestinian Authority didn't implement them," he says. "So many people are taking the law into their hands, and for one reason. Mr. Arafat has completely lost control."
It is for this reason, Eid says, Palestinians are turning to private reconcilers instead of courts. To settle his dispute with Murrah, Abu Eid went to Khader Abu Abarra, who used to be a prominent activist in the PFLP (People's Front for the Liberation of Palestine) a PLO offshoot which rejected the 1993 peace accord.
For his part, Mr. Abu Abarra says he takes no fee. It's a public service, he says, but acknowledges that it helps boost his political profile. Still, Abu Abarra's secular, socialist politics are supposed to stand for building strong civil institutions, and instead he is playing an ancient role once performed only by sheikhs and religious figures.
"Yes, it is a contradiction, because we're struggling for a real, democratic system," he says. "But what we got is something far from what we were dreaming of. I would prefer to rely on a judicial system - a trustworthy one."
According to his compromise formula, Abu Eid will take half of the land back, and will return 33,000 Jordanian dinars (approx. $46,000), about half of the money. But the judge could still uphold an assault charge against Murrah, who could not be reached for this article.
The two men, says Abu Eid, are effectively reconciled. He hopes the judge will drop the criminal case against Murrah. But is all forgiven?
"I have to accept his apology," says Abu Eid. "I don't like to keep grudges. I know that inside he feels sorry for what he did."