ARBITRATION IN THE ISLAM /Sharonit Ben Hamou, Jurist
Arbitration is a method of disputes settlement that is well recognized by the Shariaa – the Islamic law. Arbitration has been practiced in the Islam and Arabic clans for thousands of years.
In the Palestinian Authority, an arbitration would always start with shaking hands, forgiveness, hugging and kissing.
The day of the arbitration is called “The Sulah day” ( الصلحة). The Sulah الصلحة) (is a ceremony which is well known in Arab society, in which two parties who were involved in a dispute, make a covenant of peace. The ceremony has clear specific rules and is being managed by mediators and arbitrators.
The dispute resolution system known as “The Sulah” in the Palestinian, Bedouin بَدْو)), and the Arabic societies in the Middle East has not disappeared, but is wildly practiced and is a central part of the culture.
In the Bedouin( بَدْو) arbitration system, the Sulah is the main connection between the leaders of the tribes and the families, or “clans”.
The Bedouin have a full legal system of tribal courts. The responsibility for a criminal offense is collective. Each tribe is legally responsible for a criminal offense committed by one of its sons. The court is not a formal one, and is based on arbitration, mediation and local customs. The judges are chosen based on the amount of respect they hold within the community. Many times the Bedouin legal system is contradicting the Israeli formal legal system. The laws are different and it comes into a conflict.
A mediator or arbitrator in the Sulah system must be someone recognized as a strong, charismatic and powerful entity. He can never be seen as weak, since it is only with the power of his personality and perceived authority that he is able to implement his decisions on the mediation or arbitration process.
The arbitrator is paid between 10% to 50% of the amount in dispute.
In the Sulah the injured party needs to agree to the Sulah process and he sets the sum that he demands to be paid to him as a compensation.
In case of a murder the compensation is the “Dia”, a ransom. The Sulah is considered a truce, a moment where the parties consent to a cease-fire that will continue indefinitely. The injured party can announce it is an agreement forever where he declares the turning of a new page and the past transgressions are forgiven and forgotten. It is important to understand that the Sulah process under the Islamic Sharia has different rules and does not accept the Bedouin arbitration system.
The Sulah Ceremony
In the Bedouin arbitration system the arbitrator begins with a prayer to God that will give him the ability and the power to judge in a fair and just and to light his way towards justice.
Meanwhile, while the arbitrator prepares himself for the trial, the families and parties arrive and wait for the arbitrator; there is tension between them but both sides know they can not talk or fight in the arbitration. The parties have to accept the verdict.
On the morning of the ceremony the arbitrators walk the injured party and the offending party to the injured’s home.
The arbitrator ties a white cloth to a wooden pole. The white cloth represents peace and purity. The arbitrator, the offending party, and the injured party all tie a knot in the cloth, which represents a re-establishment of the relationship. Then the injured family stands in a line and both families shake hands.
Many guests are invited to the Sulah ceremony. The offending party is paying for the refreshments food and drinks, and the injured party is responsible for preparing and serving it. Before the meal, the arbitrator reads The Sulah terms and conditions, and then the offending party is called on to pay the amount of the compensation.
Here begins a ceremony in which the arbitrator asks the injured party to reduce the compensation amount in honor of Muhammad the prophet, and in the honor of other guests. The injured party will agree, as long as the amount is not less then the minimum amount he will accept. Then the arbitrator passes the compensation to the injured party, and reads again the terms of the agreement. After the meal, both families repeat the shaking hands ceremony and then drink coffee.
Sometimes the Sulah begins with an “Atawa”- a temporary truce between the “Hamulat” حمولاات)), the clans and the extended families in order to calm the tension and anger between the parties, and to allow the arbitrator to establish control of the arbitration.
For example, in murder cases the mediation and the negotiation has a process that is called “The Dia”.
The Dia
The Dia is the final price, the final payment which will be paid in the last “Sulah”, or peace ceremony. This process is passed from generation to generation.
The “Dia” amount is usually much higher than prior payments amounts, in prior stages of the Sulah process.
There are several currencies of “Dia” -reconciliation fees:
- Camels
- Gold
- Money
- Sheep and cattle
In the past, nearly every Sulah payment was in camels. In the present day, there are more Sulah processes and arbitrations than camels, and most payments are made with gold or money. It is now very rare that someone in Israel owns one hundred camels to pay towards a “Dia”. However in the United Arab Emirates, and Persian Gulf Region, camels are still used as a “Dia”. In Israel and the Palestine authority the “Dia” is most commonly paid with gold. The Dia is a set amount which is worth- 4.444 kg of gold, 135,000 Dinar, 70,000 shekels, and $255,000 in US dollars.
The negotiation is usually videotaped and does not always go as the parties would wish for. The atmosphere sometimes becomes heated, and disputes can quickly become bellicose before the arbitration or the negotiation even starts. The verdict is always final and the parties can not appeal it. In murder cases, a necessity for the arbitrator is to always be in full control, to keep calm and to be extremely cautious about what is being said when the murderer and victim’s family arrive at the arbitration site. Even though the atmosphere is highly charged, a good arbitrator is measured by his discipline and his power over the parties. A powerful arbitrator usually has armed guards beside him to assure the peacefulness and order in the arbitration process.
One of the main purposes in the Muslim arbitration process in such cases is to prevent revenge killings. In order to prevent revenge and to protect the family and the clan, the arbitrator can decide that the murderer’s family will be expelled from the village or city. This is part of a pattern to cease hostilities in the first three days after the murder, when the reconciliation mechanism goes into motion. Many times the final decision can be banishment of the entire family for years, centuries or even forever. The reason behind expulsion of the whole family, rather than just the murderer himself, requires understanding a significant cultural difference between western and middle eastern cultures. While the idea of punishing only the perpetrator of a crime seems obvious in western culture, in eastern culture it is believed that behind each murderer stands his family, “The Hamulat (حمولاات)”
In eastern culture families are considered a unified social web, a singular unit, and bear responsibility for the acts of their members. It is believed that the father will and should always interfere with his children’s actions. The siblings, the cousins and uncles from both sides of the family are considered one unit that are legally responsible for each other. In order to stop the cycle of killing and bloodshed, and in order to create a physical distance between the murderer and the murdered’s family, eastern society expels the murderer’s family in order to calm down the anger, and avoid mass bloodshed.
In this society it is impossible and unacceptable for other family members from the different sides to come across each other in their daily life after the Sulah. It is a situation that would reflect disrespect and adding fuel to the flames. Therefore sometimes the whole family of the murderer, would be told to depart, sometimes for centuries, usually when the murder happens inside the nuclear family, such as in the case of an “Honor Killing” (جرائم الشرف أو القتل بدعوى الشرف )
Honor Killing
An honor killing is a murder of a person by a member of his/her own family, due to the belief that the victim hurt and damaged the honor of the family or clan. This type of murder is common in Muslim societies in the Middle East. Most of the victims of honor killings are women while most of the perpetrators are men. In Muslim societies in the Middle East this crime is considered less severe than an ordinary murder. Offending and damaging the honor of the family is considered more severe. Therefore in these societies, committing an honor killing is considered more acceptable than other types of murder.
The family or “Hamulat” ((حمولاات would generally not even interfere in such cases, as they would commonly treat it as an internal matter of the family honor rather than a criminal issue. These types of issues of honor killing are generally for violating a serious taboo.
The Prices;
Killing a women :The Dia ضياء)) x 4 ; the murder would need to pay a consumption 4 times more if the women was not involved in the fight.
A man’s death is worth 100,000 Dinar
A women death is worth 400,000 Dinar.
Number of Steps
When a murder has been committed, the number of steps that the murderer took to reach the victim is considered an important measurement of the severity of the crime. In order to calculate the punishment and the deterrence, each step taken by the murderer to reach the victim would incur an additional payment. The idea is that each step allows the murderer to think about the consequences of his actions, therefore while walking towards the victim and having no fear of God, each step forward is seen as an opportunity to regret, walk back, and prevent the murder. By planning the murder and walking towards the victim, each step is a chance to turn back, and increases the intent behind the crime, so it is believed he should pay for every step. The Mens Rea in the western legal system is based on a similar idea.
Originally per the Sharia'a, in order for the cycle of bloodshed to stop, the murderer would have been executed, however in the present day in Israel or the Palestinian Authority, executions are prohibited. Many arbitrators and mediators in the Muslim societies in the Middle East claim that the prohibition on executions is one of the reasons for the continuing bloodshed Between the clans and families “the Hamulat “
The Israeli legal system
The Israeli Legal system sees these arbitration systems sometimes as bordering on criminal. many times the Israeli legal system has to accept the mentality of old customs within the clans- Hamulat (حمولاات), respect and not interfere with their legal systems and customs.
The Supreme Court of Israel mentioned in several court rulings that having a Sulah ceremony covenant can and might be a consideration of mitigation of a punishment, but it is not the main factor[1].
Judge Salim Jubran mentioned that The claim of custom cultured determination of Sulah ceremony between the parties is accepted as part of a principle of restorative justice in the criminal law…,and as part of the specific recognition of cultural considerations in criminal law this is in light of the centrality of the Sulah institute in the Arab society.”
On the other hand judge Hanan Meltzer mentioned: “ it is clear, it is not within the power of the Sulah to invalidate totally the severity of the offense[2] .
In practice, the Israeli court of appeals rarely interfere with the punishment[3]. The Supreme Court of Israel relived in the punishment in very rare cases which had Sulah ceremony[4] and had other considerations to leniency[5]. In the past the Supreme Court expressed negative opinion about any consideration about a Sulah process.
Judge Dorit Beinish said: “a considerable approach of consideration of a Sulah teaches a misleading approach like there is a legal system outside the court of laws”[6]. In another case the court said: “ The Sulah ceremony happened short time before the verdict, and it is not clear if it is an honest Sulah or that it’s purpose to effect the court’s decision”[7].
Judge Mishal Cheshin on the other hand thought we should consider the Sulah process as a legitimate process:”the Sulah process is a tool to create peace between opponents, the defendant is accepting responsibility upon himself for his actions and express true regret by compensating the victims of his crime. The Sulah process is not a substitute to legal punishment and it is not an acceptable tactic tool for the trial”.[8]
Judge Eliyahu Matza:” A Sulah process might be considerable in regards a defendant’s punishment after conviction, since he admitted his actions, accepted legal consequences, expressed regret and promised to keep the peace. In regards an arrest before trial, the Sulah had no Significant consideration.”[9]
On the other hand, Judge Esther Hayut wrote:” We can relay on court rulings that Sulah process in a criminal offense , is a consideration to leniency in regards to an arrest and a punishment, but the consideration is not a crucial or a deciding one. “[10]
In civil procedures The court refused to see the Sulah process as a barrier to a civil sue on the damages, the court will check the crux of the matter if a specific Sulah process includes concession to claim damages or revenge only.”[11]
[1] ע״פ 2584/07 Israeli criminal appeal 2584/07
[2] ע״פ 9896/09 פסק דין מי״ט באייר התשע״ה; ; Israeli Criminal Appel 9896/09
[3] ע״פ 7126/04 ; Israeli Criminal Appeal 7126/04
[4] ע״פ 9936/02 ; Israeli Criminal appeal 9936/02
[5] הגיעה העת לסולחה, רון שפירא, הפרקליט מ״ח, תשס״ו; The Praklit, Time for Sulah, Ron Shapira
[6] ע״פ 1742/99 ; Israeli Criminal Appeal 1742/99
[7] בש״פ 8041/06 אמיר מרזוק נ מדינת ישראל ; miscellaneous requests in Criminal matters 8041/06 Amir Marduk v. The state of Israel.
[8] דנ״פ 3261/03 סראחן נ׳ מד״י ; A criminal hearing 3261/03 Sarahan v. The State of Israel
[9] בש״פ 10114/01 מדינת ישראל נ׳ עדנאן חמדאן
[10] בש״פ 5401/03 מוטב או אל קייעאן נ׳ מדינת ישראל
[11] ע״א 621/04 עלי אסעד נ׳ אמל קבלאן