Wednesday, December 1, 2010

The Justice sector reform in post-conflict societies: The Palestinian Paradigm


By Mutasem Awad

Editor and Translator Hiyam Noir

November 25 2010

It is true that the Israeli - Palestinian conflict is not over yet, and that the state of Palestine did not yet see the light, and that the occupation and the division between the Westbank and Gaza remain a major obstacle to the development of the Justice and the Rule of Law sector in the Palestinian society.

I have used the expression “post conflict” to study the model of the reform of the Justice and Rule of Law sector in Palestine after the painful strikes that it suffered during the Al-Aqsa Intifada,related though not similar to parts of reforms that was set into practical effect in the sectors of justice in post-conflict societies in Afghanistan, Bosnia and Herzegovina, El Salvador, Kosovo and East Timor.

Moreover, I have used the term post-conflict as part of the existing trend towards building the Palestinian legal institutions in a future Palestinian state - and the ending of the Israeli occupation. The division between the two major Palestinian political parties is not diminishing in intensity. I have had difficulties to obtain sufficient information about the current situation of the justice sector of Gaza. Hence, this analysis reviews the development taking place in the justice sector of the Westbank.

Main actors are using different terminology when referring to programs in the re-construction, the restoration, and the development of sectors in the system of justice, such terms are for example : "the administration of justice," or "judicial reform", or "legal reform", or "reform the justice system", or "reform the justice sector ", or" reform the rule of law. "Internationally there are two main terms , first the judicial reforms, which is a set of policies, interventions, and activities that aim to build or repair the justice systems in the state, and the second is the legal reform, which refers to the process of repairing or the re-drafting of the legal frameworks governing the society. In the Palestinian case, we use the term- reform of the Justice and Rule of law reform, which combines the previous two terms.

I believe the concrete substance of the entity is not the term, but the approach taken in the reform process. Supporters believe a holistic approach will give the best results in the reformation of the justice sector, in post-conflict societies. A holistic approach, is characterized by the process of developing a balance between the actors in the justice sector as a whole, based on an integrated strategy. This process includes the reformation and the development of legislation to promote efficiency, accountability and integrity - and the independence of judicial institutions, in parallel with the reformation and development in the work of the courts, the Ministry of Justice, the Public Prosecutor, the police and prison administration, the Bar Association, the Office of the Ombudsman, the institutions of legal education and training, and alternative mechanisms for disputing settlement aimed at easing the burden for the police ,the prosecution and the courts, in a manner which are not affecting the rule of law, in addition to the development of mechanisms for Legal aid, and the work of Human Rights institutions. There cannot be an effective justice sector without the development of all the actors in parallel, there cannot be strength in a court system were the prosecution is weak, and we cannot have an effective prosecution system if the police is wanting in moral strength..and so on.

The characteristic of the status with regard to the conditions and circumstances within the Justice sector in post-conflict situations, is the existence of a legal vacuum; the destruction of the infrastructure in the justice sector,in particular police stations, offices of public prosecution, courts, in addition to prison, the absence of qualified judges, prosecutors, qualified and licensed attorneys, and qualified police officers. Moreover, corruption,  lack of commitment to international standards of human rights, and the increase in the backlog cases in the prosecution and courts, thus could also be characteristics of the Justice sector in post conflict societies, consequently affecting the public confidence in the entity of the justice system.

The Justice sector in Palestine have suffered at the greatest extent during the Al-Aqsa Intifada. Israel  destroyed the infrastructure of the security apparatuses in the Westbank and Gaza, the rehabilitation centers “Prisons”, the criminal labs etc.- all these measure have dramatically affected the work of the police, the prosecutors, and the courts. As a result the bulk of outlaws increased, they also expected and should have the right to a just trial. The number of received cases to prosecutors and courts decreased, the backlog cases in the prosecution offices and courts increased, the number of courts and prosecution decisions that had to be carried out by the police decreased.

In the Palestinian society, this juridical disorder, the absence of structure led to a weakness of the citizen's confidence in the justice system which caused a negative impact on the strength of the rule of law. On the other hand the institutions of legal education and human rights institutions in Palestine gained on all levels a well maintained structure during the Al-Aqsa Intifada. The well maintained structure improved and enhanced the human cadres of the justice sector, the provision of legal aid, during the period of the reform process, which still persist and in progress.

I believe a positive factor is to increase the speed of the reform process. If evenly elevated, it would have increased the process of juridical reform.In some countries, such as for example East Timor,there were only a few lawyers in the country after that the war ended.

The starting point of the legal and Judicial reform in East Timor was weak and slow. But in the Palestinian case, the starting point was more improved, due to the fact that the Law schools in Palestine have graduated good enough lawyers.Means of achieving an end to corruption, lawlessness, dependence and occupation,quite a large number of laws must be implemented at the very beginning of the establishment of a genuine, stable and strong Palestinian society.

Reforming the security sector could precede the reform of the Justice sector, in a way that the previous will build the bases for a strong and sustainable justice system. The Palestinian reform case was not far from reaching this approach, the focus at the very first stage of the reform  process, was the approach to reform the security sector.

Large financial investments formed a high proportion of the budget development and was invested to reform the security sector. In contrast, compared to the security sector, the proportion of budgets allocated to the justice sector was low. I believe that this could happen in any reform process thus is based on  identification of priorities, but on the other hand this should be only on the short term to be followed by a comprehensive reform process and in both the security and justice sector, both in medium term and in long term.

The base and the process of the judicial sector reform in post-conflict societies derive from several sub-processes, namely;

1.  Law Reform: Usually the existing legal system in post-conflict societies are old, do not meet the needs and aspirations of the community in development and prosperity, as well as in some conflicts within international standards of human rights and good governance. In the case of the Palestinian legal system, which suffers from lack of harmony because it inherited different systems of laws in different periods. The Palestinian legal system still contains laws from the Ottoman era, the British, the Jordanian, and Egyptian period, in addition to military orders imposed by the Israelis occupation authorities.

Then again, the Legislative Council has become dis-functional because of the Palestinian political dissonance, this disagreement is producing tension and hostility which creates obstacles for the development of a Palestinian legislation. However, the Palestinian National Authority has during the past three years prepared a considerable number of important draft laws, thus the laws passed, are still few.

I believe that the development of Palestinian laws is a part of the process of the Palestinian peoples liberalization. The laws of the Ottoman rulers, the British, the Jordanian and the Egyptian and the Israelis military imposed decrees, were not designed for the development of the Palestinian society. In contrary these laws were statutes aimed to tighten the control of the central authority in the Palestinian community, rather than developing it and responding to its needs.

2. The strengthening of the judicial capacity: The foundation of an independent Judiciary system is the base for developing a strong Justice system in post-conflict societies. The process of strengthening the judicial capacity includes the raise of the competence of judges, ensure their integrity, infrastructural development and institutional capacity of courts to increase the capacity of the judiciary to respond to the needs. In post-conflict societies Judiciary is characterized by lack of human resources,fragile infrastructure and institutional capacity.

The inadequate attention to the development of the judicial authority in the Palestinian case, has resulted in the absence of an appropriate environment for litigation.The weakness of Public Services in the Judiciary system, the poor management, and the slow progress of the proceedings, the accumulation of cases in the courts, and the weakness of mechanisms for the implementation of court decisions, which all together have led to the loss of citizen's confidence in the judiciary, and forced to resort to the means of parallels away from the rule of law.

In recent times the conditions of an appropriate environment for litigation have improved. The Reform and Development Plan (2008-2010), has worked on the consolidation of the civil and criminal justice systems, and the promotion of the complementarity between the institutions of justice and security.Many actions have been taken to strengthen the independence of the judiciary, development in capacities of personnel in the judiciary and public prosecutors, modernization of the infrastructural and institutional capacity of the Council of the Judiciary, the courts, the Office of the Attorney General, and in the offices of Public Prosecutions.

As a result, these efforts has reduced the number of backlog cases in the courts and prosecution offices, and decreased the time needed to finalize the cases before the courts . As a result the settled cases in the courts increased by 66%,in year 2008 compared to year 2007. The courts also exceeded this percentage in 2009. Settled conciliation cases increased by 156% in the year 2008.The increase in settled crime cases increased by 263%, in addition 15% of the  backlog cases in the courts were settled.

3. Reform of legal education and training: It is often neglected in the area post-conflict societies, it rarely include plans for judicial reform, the issue of developing institutions of legal education and the curricula and courses relevant. Although there are many colleges and institutes of law in Palestine, and the dozens of students whom graduate each year, the legal education in Palestine is still new with no real national partnership, week cooperation between the schools of law and the government and the civil society to meet the needs of the Palestinian labor market.

 4. Promotion of legal aid / access to justice:  Usually the planning process in post-conflict societies  moves up - down,thus ignoring the daily needs of the citizen in the area of justice. The Palestinian case has similar characteristics,where the factor that attend to the subject of access to justice for marginalized groups is not enough.Thus the overwhelming percentage of these groups are not able to hire an attorney, to be able to defend themselves before the courts. On the other hand donor interest in this subject increased during the current year, which in my opinion has a good chance to benefit this group of inhabitants. It is therefore imperative to develop a national system to be used for the Palestinian legal aid of marginalized groups, and to pay attention to the amount sufficient for it's requirements. The current Palestinian legal aid system does not provide assistance to the provisions of a crime that may give less than three years, while the majority of cases in the courts of Palestine are the type of lesser-included offence. However at the light of their difficult economic situation, still the number of people who are in need of legal assistance is large.

 5. Strengthening the role of civil society institutions in the development of the justice sector: The role of civil society organizations working in the justice sector such as the Bar Association and human rights organizations, non-governmental advisory, and human rights institutions, is an important part in promoting the process of reforming the justice sector and the promotion of a culture of rule of law. The Bar Association plays an important role in the process of upgrading the education for professional lawyers, and the defense of their interests, the guarantee of their freedom in the performance of the message. The civil society institutions play an important role in spreading the culture of the rule of law - and the respect for human rights in the entire society.

In the Palestinian case there are many human rights organizations, non-governmental organizations that have played an important role in promoting a culture in the rule of law, conducting research and perform various studies, the integration of some topics of the rule of law, the citizenship and human rights in educational curricula, exposing practices and policies of the Israeli occupation authorities, against the Palestinian people. Except from that the element complementarity between these institutions are still weak, most of these institutions rely on external funding, and thus competing with each other of such funding, shall impair the integration of work between them.

6. Anti-corruption: A widespread corruption is often characterized in post-conflict societies within the institutions of government. The lack of effectiveness, accountability and transparency, in particular if the transition of the regime is revolting from a Liberation movement towards  a state. The situation is quite different in the Palestinian case, but efforts have been made recently to fight corruption and to hold accountability for corrupt promising.The Palestinian President, Mahmoud Abbas, whose original four-year term presidency have expired, appointed last March, Mr. Rafiq al-Natsheh as a chairman of the Anti-Corruption Commission. Moreover he endorsed the  Anti-Corruption Law in June 2010, aimed at enhancing the transparency and integrity, and the accountability of all those who have committed corruption crimes. A third important development in this regard was the opening of the Court of crimes of corruption, which aims at strengthening the role of the judiciary in it's fight against corruption.

The new anti corruption law criminalizes all forms of corruption, including nepotism and cronyism that were not criminalized in the previous law. Also expanded is the powers and functions of the anti corruption committee, to include the investigations of all corruption cases and the review of legislation and policy-making, and to develop plans and programs to combat it. It also gives the powers of the Commission for Coordination with the competent authorities to track and control corruption cases, in addition to awareness to the Palestinian society at all levels.

The subjects to the provisions of the new law, are the PNA chairman,his advisers and ministers,  the heads of the institutions of the authority, the chairperson and members of the Legislative Council, the members of the judiciary, prosecutors, and it's staff. The heads of bodies and organs of the Palestinian National Authority, and it's staff, the heads and members of the councils local communities and it's staff, chairperson and the members of boards of the directors of charitable societies, political parties, trade unions, and employees, in addition to international staff working in the Occupied Palestinian Territory.

This law is consistent with the United Nations Convention against Corruption, which have declared the Palestinian National Authority its commitment. Thus the release of the anti corruption law is a good step forward in building the institutions of a Palestinian state on the basis of good governance. Following the issuance of this law, the Attorney General  worked to allocate a number of prosecutors to work with the Anti-Corruption Commission, in line with the thrust of the new law. As well, the High Judicial Council appointed the chairperson and the members of the Court of crimes of corruption.

There is no doubt that the process and the reform of the justice sector in Palestine will take priority in an overall reform procedure. I believe that the national plan for the justice sector and the rule of law for the years 2011 - 2013, have committed it self to approach a holistic reform process,focused on development of the legal system, strengthening judicial capacity, and empowering the role of the Palestinian civil society, in the process of reformation of the justice sector, which also have participated in the preparation of the plan, the development of legal education,the development of the legal aid system/access to justice and combat corruption, but more importantly, strategically change the directions of these policies into concrete facts.

Foremost, in order to be comprehensive, I believe we must end the political division, and consolidate the reform process.The justice sector in Palestine can not be effective if the laws, regulations and procedures in the Westbank and Gaza are not unified.

Published in New York November 25 2010

Mutasem Awad is an International Humanitarian Law specialist / lecturer in Ramallah PoT. His articles have been published in numerous journals and news media outlets worldwide.
For inquires you may contact Mutasem Awad at 
or Hiyam Noir at

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