Are Sharia and International Law Compatible?

Mahmoud Abbas’ recent ratification of global treaties was a reaction to the failure of peace talks. A Palestinian legal expert says this is actually the perfect time to improve local legislation.

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A demonstration in Gaza City calling for an end to violence against women, December 14, 2014.
A demonstration in Gaza City calling for an end to violence against women, December 14, 2014.Credit: AFP
Amira Hass
Amira Hass

On January 11, at Jenin Magistrate’s Court in the West Bank, Judge Ahmad al-Ashqar ruled that he had jurisdiction to issue a judgment in a criminal case, involving both Israelis and residents of the Palestinian Authority. The Israeli in this instance was a Palestinian resident of East Jerusalem, who argued that the Oslo Accords of the 1990s barred the Palestinian Authority’s courts from trying Israelis, and therefore he should be released immediately.

For his part, the young Palestinian judge ruled that the Oslo Accords, which laid the foundation for the creation of the Palestinian Authority, had long since lapsed. They laid the seeds of their demise, he ruled, when their duration was set at five years.

Furthermore, when the United Nations recognized Palestine as a nonmember state in 2012, Palestinian courts became authorized to adjudicate the cases of anyone committing violations of the law within its borders, the judge stated.

Before handing down his ruling, the judge consulted with Dr. Mutaz Qafisheh, dean at the College of Law, Hebron University, and an expert in international law.

In a conversation with Haaretz, Qafisheh recounted that he had encouraged Judge Ashqar and raised another legal aspect: When Palestinian President Mahmoud Abbas signed international treaties and other agreements, international law and its principles became binding on the PA, even superseding any bilateral agreement between states.

A basic principle of international law is equality, and the Oslo Accords do not respect this principle, Qafisheh maintained. “Palestinians and Israelis should be treated and prosecuted by the same law,” he said.

The judge’s independent ruling on principle was joyfully welcomed by social activists, who have been pushing for the creative and assertive use of international law in the battle against the Israeli occupation.

The happiness was short-lived, however. A week later, Ali Muhanna, the head of the Palestinian Supreme Judicial Council – which is responsible for judges – ordered that Judge Ashqar be transferred from his post to a more junior and solely operational function involving the enforcement of judicial decisions handed down by others.

The punishment was interpreted as a warning sign to other judges, cautioning that they dare not relate in their rulings to the Oslo Accords. It can be assumed that Muhanna, who is a close associate of Abbas, acted in consultation with the Palestinian president or under his influence.

As a judge, Ashqar is barred from expressing himself in public. Qafisheh, on the other hand, as a lecturer and expert in international law, is continuing to explain at every opportunity that international treaties and other agreements signed by Abbas are not only a means for use in the struggle against the occupation, but also apply to local Palestinian law and require their enforcement. The extent to which this is not obvious surfaced at a conference organized by Musawa – the Palestinian Center for the Independence of the Judiciary and Legal Profession.

The conference dealt with the unification of the Palestinian judiciaries of the Gaza Strip enclave – where Hamas has been the dominant power since 2006 – and the West Bank enclaves, where the Fatah-led Palestinian Authority is in control. The 2007 split of the Palestinian judiciary and the creation of a parallel and separate system in Gaza were added to years of major differences in legislation that have not been changed yet (Jordanian law applies in the West Bank; British Mandatory law in Gaza; as well as different Israeli military orders in each of the regions). The conference was held about a week and a half ago, concurrently in Gaza and the West Bank city of Ramallah through video conferencing.

Golden opportunity

Qafisheh, who was one of the speakers, called the Palestinian signature on the treaties a golden opportunity to unify the disparate legislation and the judicial systems.

He also gave several examples of the conflict between international law and local law in the occupied Palestinian territory: the latter doesn’t ban torture, permits the death penalty and, relying on Islamic religious law, permits polygamy and inequalities in inheritance rights between men and women. It doesn’t bar child labor and is also insufficiently clear when it comes to the enforcement of a minimum wage. Based on international law, he said, Palestinians are entitled to demand their rights in Palestinian courts.

During the Q&A period, one member in the Gaza audience railed against Qafisheh, “Are you encouraging women to approach the civil court and object to their husbands marrying an additional wife? Are you encouraging women to demand equal inheritance rights in court as their brothers have?”

During a merciful moment when the video link between the West Bank and Gaza continued uninterrupted, Qafisheh explained that other Muslim countries such as Egypt and Saudi Arabia had included reservations when they ratified international treaties – The Convention on the Elimination of All Forms of Discrimination against Women, for example – appending a statement that the treaty applies on condition its provisions are not conflicting with Islamic Sharia law.

President Abbas, however, did not add any such reservation to any of the treaties he ratified, remarked Qafisheh.

Qafisheh said this was an indication that the Palestinian ratification of treaties was simply a reaction to circumstances, without any forward-looking or comprehensive, strategic thought being given to the implications. But it also demonstrates the potential of international law in its domestic Palestinian context, not only as a means to make Israel accountable for its actions (or “crimes,” as Qafisheh put it).

The main reason behind the ratification of international treaties was the failure of the Oslo process and negotiations with Israel, the legal expert told Haaretz.

“The ratification was mainly a reaction to the stubborn Israeli position in regard to the negotiations, and the inability of the United States and Europe to pressure Israel,” he added, referring to pressures to comply with international decisions to halt settlement construction and prepare for the end of the occupation.

With the establishment of the PA, “for the Palestinian leadership the occupation was their first priority, and not a change of local laws,” he explained. “They assumed that after the end of the occupation, they would have time to change local laws. Most of the changes taking place from 1994 on were mainly a reaction to demands by NGOs or [the financial] donor community. The basic law, for example, or the children’s rights law, the judiciary law, the NGOs law – I can’t see any law that was implemented [at] the PA’s [sole initiative] and [due to] the actual need of society for reform and modernizing the legal system,” Qafisheh said.

In comments following another question from the audience in Ramallah – in essence, regarding a claim by a young female university student that there should be full equality between men and women – Qafisheh asked to express his opinion. For some reason, the moderator finished the discussion at that point and turned the floor over to the audience in Gaza. Qafisheh was furious, and said he thought it was done deliberately to prevent him from saying what he has been stating and writing at every opportunity: that there are progressive interpretations of Sharia law, and therefore Sharia is not in conflict with human rights and women’s equality. There is simply a need, he claims, for Sharia adjudicators and for legislators to get enthused about the subject.

A threat to conservatives

Qafisheh has studied and specialized in Sharia law, in addition to international law. As a result of this double expertise, he also worked at the legal department of the United Nations in Geneva. This makes his views more threatening to conservatives, he thinks, adding that there is a conservative coalition composed of politicians, the religious establishment, and clan- and tribal-based thinking.

This coalition, which operates in both the West Bank and the Gaza Strip, is seeking to block legislation that would be in keeping with international standards, he said. Due to the pressure of this coalition, for example, so far the provisions of the law that provide lenience for the murder of women have not been repealed; nor has, officially, the death penalty (although in practice it is not being used any more in the West Bank).

The Israeli occupation is a central partner in the conservative coalition, Qafisheh said – a coalition which contends that any change would do harm to traditions and cause internal social tensions that assist the occupation. In about 85 percent of the West Bank (East Jerusalem, the Old City of Hebron and Area C, the part of the West Bank under full civil and military Israeli control), the Palestinian Authority has no jurisdiction to enforce its laws on Palestinian residents, even if they were the most progressive. Qafisheh explained, for example, that in the absence of any police authority, it is impossible to prevent families from threatening to resort to revenge killings, despite their being against Palestinian law.

Qafisheh is convinced that the liberal interpretation of Sharia law does not permit polygamy, and certainly requires the wife’s absolute consent. “Most of the multiple marriages are by people who lack education, and they marry for pleasure, to enjoy more women and more power at the social level,” he insisted. On International Women’s Day last year, when he published an article in this vein in Arabic, Qafisheh was verbally attacked and received a number of explicit threats. That is why it made him particularly angry when he was not given the opportunity to support the student’s remarks about the need for the passage and implementation of equality legislation.

Now, the public discourse is focused on the Palestinian application to the International Criminal Court in The Hague, something Qafisheh enthusiastically supports. “Abbas took it as a means to pressure Israel, but not seriously in terms of technical preparations. But technical things can be changed quickly, if there is a political decision and [the] will,” he said.

Qafisheh confirmed a widespread belief among Palestinians that international law recognizes the right of a people under occupation to resist the occupier and fight the violently imposed foreign rule by various means. But even in this regard he goes out on a limb in expressing an unpopular stance: The use of weapons is permitted only against soldiers and other armed individuals of the occupying power, he said, but not against civilians, including unarmed settlers – and certainly not against children.

But “this is not my opinion, it is what international law says,” Qafisheh emphasized. “Personally, I am in favor of a popular resistance, which we Palestinians understand is the opposite of an armed resistance. In my opinion, the popular resistance is much better for the Palestinians than an armed struggle – resistance like [Mahatma] Gandhi in India, Martin Luther King, Jr. in the United States, Solidarnosc in Poland.”

Amira Hass tweets at @Hass_Haaretz

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