Erin Cunningham
The Christian Science Monitor
January 22, 2010 - 1:00am

The residents of Gaza have a name for the period of tribal lawlessness that plagued their impoverished territory between Israel’s withdrawal in 2005 and the Hamas takeover of 2007. Marred by rampant tit-for-tat murders, kidnappings, theft, and checkpoints run by armed clans, Gazans call these years ayam al-fowda, or the “days of chaos.”

Those days are gone, however, after 2-1/2 years of strong Hamas rule successfully disarmed the territory’s rival clans – made up of just one or sometimes several extended families – and restored order again to Gaza’s streets.

But some of the same families responsible for much of Gaza’s violence before the Hamas takeover say the Islamist movement has since used crime control as a pretext to influence the clans’ unique system of tribal law – an ancient oral code experts say often contradicts Hamas’s own version of Islamic justice – by appointing pro-Hamas clan chiefs and pressuring local leaders to issue Islamic-style rulings.

Hamas officials say clan leaders, referred to locally as mukhtars, are free to practice their own methods of reconciliation, as long as the rule of law is respected and justice is served. But any overt politicization of the chiefs, historically seen as societal mediators in Gaza, may end up threatening the independence of a system experts say has regulated Gazan society at the grass-roots for centuries.

“This is a matter of the very deeply entrenched customs of Palestinian society,” says the director of the Al-Dameer Association for Human Rights in Gaza, Khalil Abu Shammala. “Any takeover or molding of this [tribal] system will most certainly affect the core of social relations in Gaza, especially when we take into consideration Hamas’s increasing Islamization of the law."

Gaza’s tribal code is a blend of pre-Islamic Bedouin traditions and customs dating back to the era of the Philistines, that are interwoven with, but not anchored in, some Islamic principles. With guidelines and punishments for everything from clashes between families and personal injury claims to disputes over land and even murder, the code can provide powerful social glue in the absence of a functioning state, analysts say.

Clan adjudication methods, often carried out in the homes of clan leaders over tea, are consensual between parties, and regularly end in the accused paying some sort of monetary compensation to the victim or the victim’s family.

Because formal courts under the Fatah-led Palestinian Authority were tarnished by accusations of corruption, the mukhtars became virtually the only functioning judiciary in Gaza during the “days of chaos.”

“Like all institutions, the judicial system was affected greatly by the Israeli occupation” beginning after the Six-Day War of 1967, says Gaza-based lawyer Samer Mousa. Many Palestinians in Gaza viewed Israeli courts as biased, he adds. “The occupation strengthened the mukhtars,” Mr. Mousa continues, “who became rooted very deeply in society as judicial mediators when the Palestinian Authority took over [in 1993].”
Clan leaders feel political pressure from Hamas

In the southern Gaza Strip town of Khan Younis, Abu Nabeel, a self-proclaimed apolitical mukhtar responsible for judging disputes between thousands of his extended family members, sips sage tea and thumbs his prayer beads in a breezy, outdoor salon shaded with vine leaves.

He says he has been pressured to issue rulings in favor of Hamas, as well as privately chided for judgments the Islamist movement says are incompatible with Islam. Local Hamas policemen have asked him to counsel the women on their obligations as Muslims to wear the veil and “behave properly.” Hamas recently banned women from riding motorbikes or scooters to “protect community values.”
“What Hamas wants is to either replace us, or to have us work to strengthen them and their version of Islamic justice,” Mr. Nabeel says. “When Hamas promotes or establishes its own mukhtars and ignores the rest, it has nothing to do with their respect for the tribal code; it’s political.”

Ancient clan laws 'clash with Islamic principles'

Sometimes Gazans turn to the mukhtar because Hamas officials can’t or won’t take the case for political reasons. For example, Fahim (not his real name) says his family was involved in a dispute with another family in northern Gaza, after some of the young men got into a fight after school.

Fahim’s brother and his cousin, both 17, were beaten by members of the other family. Fahim’s family went to the Hamas police to file a complaint. But the other family called on their relatives in the Qassam Brigades, a military wing of Hamas. The police subsequently said they would cease investigating the crime.

So, Fahim’s family called on their clan’s mukhtar to meet the other family’s mukhtar, and the two imposed a week-long truce on both families to temper bad feelings. They then began negotiations to solve the problem.

Araf Shaher, a mukhtar also based in the south and known for settling disputes between smugglers in the network of tunnels under the Egyptian-Gazan border, says he will avoid Hamas pressure as long as he can.

“I have nothing to do with the Hamas police and their version of the law,” Mr. Shaher says from his office in Rafah, also in the south. “My rulings are based more on my own traditions, and Gaza’s traditions, than they are on Islam. There are many times when they clash directly with Islamic principles, especially when I am ruling on a murder. But I won’t change.”

Islamic law calls for the death penalty when someone is murdered, says a senior Hamas official and member of its political bureau, Khalil al-Hayya. He says with a mukhtar, the crime can be absolved with either money or a simple apology.

Mr. Hayya says Hamas is interested in a more Islamic approach to grassroots conflict resolution, and Mousa says the movement is increasing the number of mukhtars willing to hand out more Islamist-style judgments.

“Hamas prefers Islamic law,” says Hayya. “Because in many cases the law used by clans is not just; it doesn’t go far enough. But Islamic law is precise, and there is no injustice because it is the law of God.”

While Gaza’s many clans and their leaders filled an important void when institutions broke down after the Israeli withdrawal in 2005, they also promoted a violent lawlessness many Gazans are now grateful is gone.
Does Hamas law brings order, or authoritarianism?

Hamas says the calm they brought to Gaza’s streets actually gives the mukhtars more legitimacy than they ever had under Fatah.

“The mukhtars in Gaza, they are now supported by the law,” says Abu Nasser, an adviser on tribal affairs to Hamas Prime Minister Ismail Haniya. “Now, when the mukhtar gives his judgment, people must follow it because they know he can call the police and impose the ruling on him in the name of the law.”

Mr. Shammala agrees that the Hamas crackdown on the violent clan culture was a major success for the movement, but sees its interference in the age-old work of the mukhtars as part of its overall consolidation of power in the territory.

“Hamas disarmed the clans, and that is one of the positive aspects of their rule in Gaza,” says Shammala. “But to end the crime, they don’t have to meddle with social laws. It’s part of a power play. Whether it’s Islamic or based on control, they are using it to bring everything in Gaza under their umbrella.”


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