How customary dispute-resolution mechanisms fell the gaps left by the formal courts system in a fragile conflict-affected context
The well documented case022 of the evolution of the land dispute-resolution mechanisms in Gaza shows how, in a context affected by protracted conflict, where institutions are weakened and capacities and resources to maintain them are scarce, people and women turn to the customary justice system.
The civil (nizami) courts have jurisdiction over land claims and disputes, but were severely weakened when the Hamas took over Gaza in 2007. The existing shortage of judges was strained by the replacement of the Palestinian Authority judges with new Hamas appointees, many with little or no experience. The 37 remaining judges serve a population of 1.7 million, resulting in long delays and people turning away from nizami courts. Some women also felt that taking cases to court worsened their relations with family members, although others felt it was a risk worth taking in the pursuit of their rights, both as a matter of principle and as an economic necessity.
Individuals continued using sharia courts, considered to be faster and cheaper than nizami courts and reasonably fair to women, in spite of a lack of female representation. However, even the lesser costs proved to be still too expensive for the impoverished and displaced population. According to a NRC research, between 2004 and 2010 there was an estimated 20 to 25 per cent increase in cases heard before customary dispute-resolution actors (amounting to 41,000 cases over the period), such as the mukhtars (family leaders and clan elders appointed by and registered with the Ministry of Interior and assigned to specific families, neighbourhoods, camps, areas, tribes or cities), the islah men (traditional mediators also being registered), the rabita committees established by the Hamas-affiliated Palestine Scholars League and the islah committees.
Rabita committee members receive a monthly payment, which allows the services provided by them to be given free of charge. The main weaknesses with customary dispute-resolution mechanisms in Gaza appear to be that disputants have no obligation to cooperate with the process and there is no enforcement mechanism (except for rabita committee decisions that can be enforced by the police, such as formal judicial rulings023). Further, mukhtar are often part of the extended family and therefore have a personal interest in the disputes, making them less impartial and effective. However, in spite of the visible shortcomings, alternative dispute-resolution mechanisms fill the gap left by the formal system, providing a viable — although imperfect — solution to land, housing and property rights conflicts for the short to medium term.
How mandated institutions, civil society, and religious institutions can work together to reduce women’s renunciation of their housing, land and property rights.
Nearly everyone in the fast-growing and young Palestinian population has basic education, including girls. However, because of social attitudes and protracted economic stagnation, female participation in the labour force is among the lowest in the world, with only 14 per cent of women formally employed,°46 half of them in low-paid jobs. The gender gap in the labour market is reflected in women’s lower access to land. Only 7 per cent of women own a house or real estate property, compared to 57 per cent of men. These statistics have drawn attention to the issue of inheritance and women often not receiving their fair share, however, the problem is often more of a cultural dilemma than a legal one.°47
Although in Palestine women are often knowledgeable about their rights to inheritance and wish to claim them, the consequences for doing so are high. Women face the risk of being cut off from their families or creating frictions and divisions within the families, which is a major deterrent.°48 Family is a very important safety net in Palestine, especially as women often return to their family or origin in the case of divorce or widowhood, and brothers are expected to be women’s life-long protectors. Losing this contact may have very serious consequences for women and is why many women are reluctant to claim their rights!’” A 2006 survey done in Gaza°5° revealed key issues that hinder women from claiming their inheritance rights. Approximately 60 per cent of women lost their inheritance because of “fear of family boycott”; 13 per cent because of a lack of awareness of their rights; 10 per cent because of ignorance of the laws and procedures related to inheritance partition; 7 per cent because of the lack of financial resources for complaining in a court, and 5 per cent because of the social criticism of a woman who would embarrass her husband.°5‘
However, women are increasingly willing to claim their inheritance rights as a result of increased awareness-raising and the availability of assistance through lawyers and NGOs. Different groups working on the women’s inheritance issue have emerged; they are challenging traditional gender dynamics and creating a conducive environment. In 2003, the Ministry of Women’s Affairs (MoWA) was established to facilitate gender mainstreaming in different national sectors. MoWA’s mission is to “ensure a legal and policy framework for achieving gender equality by mainstreaming gender and empowering women as essential partners in the building of a democratic state”.°52
Civil society in Palestine is vibrant and strong. In 2009, there were over 2,100 registered civil society organizations. According to 2006 data, the primary area of intervention of nearly 9 per cent of CBOs was women’s rights and well-being. During 2011 and 2012, civil society organizations successfully reactivated the National Committee for the Personal Status Law, a coalition of organizations working to promote gender-equitable legislation, particularly concerning six key issues: marriage age, common wealth, polygamy, divorce, custody and equal legal status (for example as witnesses in marital disputes).
Progress was made with regard to women’s rights, particularly through sharia courts. In 2011, three administrative orders were passed by the Chief Justice of the Sharia Court to reduce the vulnerability of women. The orders aimed to ensure that women have access to accurate information in inheritance cases.°53 In particular, action was taken to reduce the number of women renouncing their land rights. The decree of 15/5/2011 defines the preconditions required for inheritance renunciation (Takharuj or Tanazul): (1) Detailed inventory of the movable and immovable belongings of the deceased, signed by all the heirs present in Palestine, and authenticated by the city council; (2) Report established by three experts to evaluate the belongings to be excluded from inheritance under takharuj procedure; (3) Publish the takharuj decision in a newspaper for at least a week, under the supervision of the sharia court; and (4) The final takharuj decision should not be registered until four months after the death. The importance of this decree is that it imposes transparency of the inheritance process, in terms of inventory, valuation and definition of every heir’s rights, and under the control of official bodies, thus breaking the secrecy, hence the potential intimidation, prevailing inside a large number of families.
Civil society organizations, such as the Young Men Christian Association (YMCA) and their partners, are currently lobbying the Palestinian Authority to establish an inheritance department within the Justice Ministry.054 Land mediators are active both in the West Bank and in the Gaza Strip to provide guidance and suggest solutions for land conflicts, including about the difficulties linked to inheritance. A few women are among these mediators.
Civil society has also been active in fighting inheritance denial. A major achievement has been a project conducted in 2010-2016 by YMCA-East Jerusalem and a number of women’s NGOs with the support of the European Union and DanChurchAid. The project included: (1) capacity development of local community based organizations to lead campaigns on women’s property rights issues; (2) study circles and training events for community based organizations, journalists and lawyers; (3) legal aid through a network of CBOs, lawyers and journalists for women whose inheritance is endangered; (4) community and media campaigns on women’s right to inheritance; and (5) awareness raising through documentary movies and drama re-enactments.°55 A number of documents have been produced in Arabic: a guide to inheritance concepts and procedures, another to ways and means of organizing training sessions, a video with women’s testimonies, and video with an explanatory cartoon.
In conclusion, Palestinian women are increasingly willing and able to claim their inheritance rights as a result of increased awareness and the concerted actions of NGOs, courts and the justice sector, and responsive legislation. The presence of a legal framework, willing sharia law institutions, tools for awareness and information sharing are key enablers of this change, which is particularly transformative in an environment with high literacy. There is increased evidence of the positive effect that otherwise tragic circumstances, such as conflict and displacement, have on the emancipation of women. In such contexts women are called to step outside the traditional roles to which they have been relegated by male-dominated practices and this allows them to work, be exposed to different realities, meet different people and overall gain the needed confidence to claim their rights.056
021 “Realities from the Ground: Women’s housing, land and property rights in the Gaza Strip046 Against 67 per cent of men.
047 “Cross-Sectoral National Gender Strategy. Promoting Gender Equality and Equity 2011-2013″, Palestinian National Authority Ministry of Women’s Affairs & United Nations Women.
048 “Realities from the Ground: Women’s housing, land and property rights in the Gaza Strip (2013). Norwegian Refugee Council.
050 ‘Woman and Inheritance in Gaza Strip, Women’s Affairs Centre Gaza (2006).
051 The remaining 5 per cent is “other reasons” and “no answer”.
052 ‘Cross-Sectoral National Gender Strategy: Promoting Gender Equality and Equity 2011-2013, Palestinian National Authority Ministry of Women’s Affairs & United Nations Women.
056 NRC (2013).