1. Introduction, context and methodology

Sociolegal literature indicates that different forms of informal non-state justice and dispute resolution mechanisms are strongly prevalent in much of the developing world (and in some developed countries) through which most disputes are resolved outside the state’s justice system (Albrecht & Kyed, 2010; Houlihan & Spencer, 2017; Kötter, Röder, Schupper & Wolfrum, 2015; The TLO, 2010; Wardak, Saba & Kazem, 2007; Wojkowska, 2006). The situation is very similar in Palestine, where provision for justice by informal institutions and mechanisms has been prevalent historically and contemporarily (Barak & Abuarrah, 2014; Hope, 2017; Jaradat, 2014; Norwegian Refugee Council, 2012). In fact, informal justice institutions in Palestine developed mainly as responses to colonial powers before 1948 (Institute of Law, 2006) and then to exclusionary practices exercised by Israel against Palestinian people in the occupied territories (ESCWA, 2017; Shalhoub-Kevorkian, 2016; This Week in Palestine, 2017). According to a report by the Terre des hommes Foundation (Tdh) (2016), reliance on non-state justice has continued to be strong even after the formation of the Palestinian Authority (PA), based on the Oslo accords between the Palestinian Liberation Organisation and Israel. As it is beyond the scope of this article to examine the political complexities of what Palestine (or Palestinian territories) in the post-Oslo accords era is, in this discussion it mainly refers to the PA-governed West Bank and the Harakat al-Muqawamah al-Islamiyya (Hamas)-ruled Gaza Strip. Despite their close legal and institutional similarities, the West Bank and Gaza have separate justice systems, which are examined in Section 2 of this article.
The 50-year-old Israeli occupation of the West Bank, blockade of Gaza, exercise of exclusionary practices against Palestinians in East Jerusalem and the denial of statehood (in a real sense of the term) to the Palestinian people prevented the development of viable state justice institutions. This is one of the main reasons that informal justice institutions continue to provide an alternative to what is commonly referred to as the state justice system in Palestine (Shalhoub & Abdelbaqi, 2003). Accessibility, cost-effectiveness and the ‘restorativeness’ of these institutions are other reasons that contribute to the continued use of informal justice. According to Defence for Children International (2015), out of the 2,457 juvenile cases received by police in the West Bank in 2014, 491 were resolved through conciliation and mediation. In fact, many more disputes were resolved before they even reached the police (Traki, 2006). While it is difficult to quantify data generated by the present qualitative study, it confirms that a large proportion of both civil disputes and criminal offences are dealt with through informal justice providers among Palestinians in the West Bank, Gaza and East Jerusalem.
Because of a strong common ground between restorative justice and informal justice (Braithwaite, 2014; Braithwaite & Strang, 2001), the latter is especially relevant to juvenile justice that emphasises minimisation of the labelling effects of formal responses to lawbreaking by young people. In recent years, the relevance of informal justice to juvenile justice in Palestine has been emphasised by both national and international non-governmental organisations (NGOs) as well as by Palestinian state authorities in the West Bank. This emphasis is clearly reflected in Article 23 of the 2016 Palestinian ‘Juvenile Protection Law’. Article 23 offers opportunities to all stakeholders to deal with an offence through mediation and conciliation processes that lie largely in the realm of informal justice. However, the law does not provide mechanisms for how this provision is translated into practice, and therefore two key questions have arisen. What happens to the mediatory decisions by informal justice actors that are made totally outside the formal state justice system? How can it be ensured that such decisions do not violate human rights standards and Palestinian law and that they also complement the state justice institutions?
It was in this context that Tdh organised a workshop entitled ‘Toward a restorative and hybrid model of justice in Palestine’, which was conducted from 2 April to 6 April 2016 in Bethlehem, Palestine. Participants included representatives of Palestinian state justice institutions, the United Nations and national and international NGOs. The focus of the workshop was to explore the applicability of the ‘Hybrid Model of Justice System in Afghanistan’ to juvenile justice in Palestine – a topic that received much interest from most participants. It is important to point out that the ‘hybrid model’ proposed in the United Nations Development Programme (UNDP)-supported 2007 Afghanistan Human Development Report combined informal local justice institutions – mainly jirga and shura – with the state justice system and existing human rights institutions in Afghanistan (Wardak et al, 2007). Despite initial opposition, the hybrid model and its findings have had a tangible legal, social and cultural impact on the provision of more inclusive and humane justice in Afghanistan (Houlihan & Spencer, 2017; Swenson, 2017; USAID, 2013; Wardak, forthcoming 2019).
The workshop paved the way for conducting a field study of formal and informal justice providers to children in Palestine and the possibility of developing a hybrid model that linked the two within a coherent framework. With Tdh’s support, this qualitative field research was conducted between March and June 2017 in the West Bank, Gaza and East Jerusalem. As the target respondents in this study involved different state, non-state and civil society institutions, purposive and snowball sampling techniques were selected. Thus, consistent with the qualitative and descriptive nature of this research and its sampling techniques, unstructured and face-to-face interviews and focus group discussions (FGDs) were conducted with various Palestinian state justice officials (prosecutors, police, judges and others), officials from the Ministry of Social Development and other relevant state institutions in the West Bank and Gaza. Furthermore, interviews and FGDs were conducted with local elders and leaders involved in traditional dispute resolution (including mukhtars and islah-men), women leaders, lawyers, civil society organisations and legal and religious scholars. 71 people participated in the research, including 31 individual interviews in the West Bank, 14 in Gaza and 3 in East Jerusalem, as well as 23 participants in 5 FGDs in the West Bank. (A list of key individual interviewees with their functions appears at the end of this article.) The qualitative data was collected in Arabic and translated into English and then analysed in light of relevant literature and Palestinian law.
Section 2 of this paper focuses on juvenile delinquency, the development of the state juvenile justice system in Palestine and its current state. Section 3 is based on some of the salient findings of this field research, where non-state justice providers and their restorative justice capacities are examined. Based on an analytical examination of the findings of this research – as well as relevant legal and sociological literature on juvenile justice in Palestine – a hybrid model of juvenile justice in Palestine is proposed and illustrated in Section 4.

2. Juvenile delinquency and juvenile justice

Owing to different regimes that ruled the country since 1917, the applicable law in Palestine has been a mixture of various legal traditions. While the Ottoman legislation was based on Sharia and the Civil Law tradition, legislation enacted by Great Britain until 1948 was influenced by the Common Law tradition. The West Bank and Gaza were once again subjected to the Civil Law-like tradition from 1948 to 1967 under Jordanian and Egyptian rule, respectively. After its military occupation in 1967, Israel did not extend its legal system to Palestine and ruled by previous laws, adding a series of military orders (Qafisheh, 2013). After the establishment of the PA, the late President Arafat enacted Decree No. 1 of 20 May 1994, in which he proclaimed that all laws that had been passed before the Israeli occupation of Palestine in 1967 would remain in force until amended or integrated. President Arafat ruled by decrees until the establishment of the Palestinian Parliament in 1996. The parliament lasted until June 2007, when Hamas took over Gaza, which led to the creation of two de facto governments seated in Gaza and Ramallah (Muwatin, 2016).
From 2007 onwards, Palestinian President Mahmoud Abbas started to use his constitutional power under Article 43 of the 2003 Amended Basic Law, which gives the President the power to issue ‘decrees of necessity’ that take the effect of law (Touqan, 2008). President Abbas, with the support of the Council of Ministers that acted in lieu of the parliament, has issued dozens of decrees for the West Bank, including the 2016 Juvenile Protection Law (Karyouti & Kmiel, interview on 10 May 2017). Hamas, on the other hand, ruled Gaza on the basis of enactments by its prime minister, ministers, police and other official bodies. In view of the new Palestinian conciliation efforts, parliamentary life is expected to be restored and unified legislation for both regions to begin to be passed. Meanwhile, new developments with regard to juvenile justice in the West Bank and Gaza have taken place. These developments are examined in Section 2.2 of this article, but first it is important to take a brief look at juvenile delinquency, its nature and ‘causes’ in Palestine.

2.1 Juvenile delinquency

The existing body of research on young people in Palestine focuses mainly on general social and behavioural problems, including unemployment, mental illness and drug use as consequences of a long and continued Israeli occupation (UNFPA, 2017; UNODC, 2017). There is very little systematic research that focuses on juvenile delinquency and on what it involves in the Palestinian context. Although the current field research focused mainly on juvenile justice, it nonetheless touched on juvenile delinquency, its causes and perception in Palestinian society.
This research reveals that participants perceived juvenile delinquency in Palestine as acts that involved both criminal offences as well as the violation of social and moral/religious norms. The categories of offences for which young people were arrested both in the West Bank and in Gaza were almost identical: they involved mainly theft/shoplifting, dispute/fighting, sexual harassment, indecent assault, common bodily assault, burglary, drug use/dealing and sodomy/homosexuality. Respondents reported that it was rare for Palestinian youths to be involved in murder (of a fellow Palestinian), or in serious organised crime. Very few young people were reported to be arrested for grievous bodily harm, serious sexual assault and armed robbery, which fall into the category of ‘felony’ under Palestinian criminal law.
In all parts of Palestinian society, girls were reported by respondents in this study as committing significantly fewer crimes than boys. This finding is consistent with comparative criminological literature on crime and gender/sex (Britton, Jacobsen & Howard, 2017; Gottfredson & Hirschi, 1990). While theft topped all offences for both boys and girls, ‘acts against decency/dignity’, acts that ‘dishonour families’, ‘immoral acts’ and ‘blackmailing’ were cited as examples of ‘delinquency’ among girls. The first three categories mainly involved ‘befriending boys’, ‘interacting with bad people and/or going to bad places’, ‘dancing and smoking in public places’; the last involved defaming other girls through malicious gossip – primarily through social media. These socially constructed categories of ‘deviant’ acts applied more to girls than to boys. Importantly, these categories of ‘deviance’, and the more frequently committed less serious offences, were reported to have currency in the wider Palestinian society, including East Jerusalem. As discussed later in this article, most acts of juvenile crime and deviance were dealt with through conciliation and mediation processes outside the state justice system.
It is important to point out that for most ordinary people in Palestine, the line between violation of social and moral norms (deviance) and criminal offences (violation of criminal law) seems to be blurred: the interviews indicated that acts against decency/dignity, acts that dishonour families and immoral acts were seen both as social harms and crimes. However, as many of these acts do not have clear legal definitions in Palestinian laws, it was difficult for state justice officials to deal with them. Similarly, traditional male-dominated tribal and religious dispute resolution bodies were not always well placed to deal with these acts in ways that prioritised the ‘best interests of the child’. Increasing acknowledgement of the limitations of both formal and informal justice providers has led human and children’s rights organisations operating in both Gaza and the West Bank to get involved in the provision of justice to young people.
When asked about the causes of juvenile offending, respondents most frequently referred to the broader political and structural environment, created by Israeli occupation of the West Bank and the blockade of Gaza, as the main causes. They said that it was this ‘strangulating environment’ that has led, in turn, to wider social and economic problems such as ‘de-development’, poverty, unemployment and provision of limited public services and recreational facilities to Palestinian youths. Other factors that were seen by the respondents as leading to criminal behaviour among youths included the erosion of some traditional family structures, lack of piety, peer pressure, the influence of ‘bad’ friends and parental criminality. A notable factor leading to youth crime was the use of children by some adults to commit criminal acts, including theft and prostitution. Most respondents agreed that juvenile delinquency in Gaza, the West Bank and East Jerusalem arose from a host of interconnected factors related to the challenging social conditions of everyday life. As an official from the Office of Reform and Outreach in Gaza eloquently explained,

Most of the juvenile delinquency cases with which we are faced in Gaza – unlike those in many other countries – are unorganised; they are spontaneous crimes caused by poverty, density of population, lack of recreational facilities, and congested social space where juveniles’ families have to live. Unlike other Islamic countries where the young person can get outside home for recreation, the Palestinian youth does not have anywhere to go to except the street. And that is where he or she is encountered with specific situations and persons, and this is how crime takes place spontaneously and opportunistically […]’ (30 May 2017 interview).

Respondents identified most of the aforementioned structural ‘causes’ as mainly responsible for both male and female juvenile delinquency in the West Bank, Gaza and East Jerusalem. However, respondents also cited the influence of modern means of communication and social media – especially ‘smart mobile phones’ and ‘Facebook’ – as well as the ‘influence of bad friends’ in the real and/or cyber world as the main immediate factors behind female juvenile delinquency.
Although it is beyond the scope of this study to fully explain juvenile delinquency in Palestinian society, structural factors (economic blockade, occupation, poverty, unemployment and population density) are likely to have weakened some families and communities, and their social control mechanisms. Indeed, comparative criminological literature has consistently shown links between structural factors and juvenile delinquency (Box, 1983; Nilsson, Backman & Estrada, 2013). Comparative criminological literature also indicates that subcultures of delinquency and peer pressure in the wider social environment – alongside structural factors – are additional links in the chain of juvenile crime causation (Esbensen & Maxson, 2012; Sutherland, 1974). However, as discussed in Section 3 of this article, Palestinian society is strongly ‘communitarian’ and seems to be counteracting these criminogenic factors through close-knit tribal, religious and extended family networks. This may be the main reason that little serious and organised juvenile delinquency is reported or dealt with by justice institutions, whether state or non-state.

2.2 State juvenile justice system and its key institutional components

The State of Palestine became party to the United Nations Convention on the Rights of the Child (UNCRC) in 2014, and President Abbas, in 2016, enacted Decree-Law No. 4 on juvenile offending and justice, entitled ‘Juvenile Protection Law’ (hereinafter ‘the law’), which prompted reform of the entire state juvenile justice system. The law, which came into force on 29 March 2016, incorporates all provisions of the UNCRC with respect to children in conflict with the law. It places the ‘best interests of the child’ as a primary consideration in dealing with juvenile rule breakers. The new law has increased the age of criminal responsibility from 9 to 12 years and removed the possibility of life imprisonment and capital punishment for crimes committed by anyone under 18 years of age. The law also lays the foundations for a specialised juvenile justice system, including specialised juvenile police, prosecution, courts and juvenile care institutions. The law clearly regards children’s offences as a social – rather than a criminal – problem and incorporates a range of alternatives to custody. As mentioned earlier, a very important development in this area is Article 23 of the law, which opens possibilities for mediation in cases of misdemeanours and contraventions before initiating a criminal file. This provision has a strong potential for the development of more restorative justice-oriented juvenile legislation and policy in Palestine.
Although some provisions of the 2016 law are vague (Qafisheh, 2017) and require by-laws (secondary procedural legislation) for their implementation, the law nevertheless strongly emphasises the ‘best interests of the child’. This emphasis has had an important institutional impact on the current formal juvenile justice system, which comprises four key state institutions: the Ministry of Social Development (MOSD), the juvenile police, prosecution and judiciary. Juvenile-related issues are assigned primarily to MOSD, which is vested with the power to enact instructions to execute the law (Article 66). Importantly, it is also in charge of Child Protection Officers (CPOs) as well as juvenile care institutions. The CPOs act across all stages of the juvenile justice chain: arrest, detention, investigation, indictment, trial, rehabilitation and aftercare. They are there to assist judges and prosecutors to understand the personal and social context of the child’s life on a case-by-case basis. The prosecutor, or the judge, obtains a report from a CPO on the juvenile’s personal circumstances, including family, performance in school and health. However, in practice, judges often ignore social reports (Mansour & Adi, 14 May 2017 interview). More importantly, there is a serious shortage of CPOs in the West Bank (Mansour & Adi, 2016). As the juvenile court can no longer convene without the presence of a CPO (Article 25), hiring more officers is essential for the provision of justice. MOSD, however, lacks the financial resources to appoint more CPOs (Abdelkhaleq, 17 May 2017 interview).
As mentioned earlier, the juvenile justice system in Gaza is different from that in the West Bank. The Ministry of Social Affairs of Gaza does not currently apply the 2016 Child Protection Law; it applies the 1937 Juvenile Offenders Ordinance alongside Decision No. 25 of 2013 and Decision No. 15 of 2014, issued by the Attorney General of Gaza, according to Mutaz Daghmash, Director of the Ministry’s Social Defence Unit (23 May 2017 interview). Many respondents were critical of this situation and emphasised the need for a unified law for both Gaza and the West Bank. Meanwhile, the ‘Law on Conciliation in Criminal Matters’ was passed in Gaza in 2017, which focuses on mediation and conciliation in juvenile offences. According to Saed Abdoh, advisor to Gaza’s Attorney General, mechanisms for the application of the law are under way (29 May 2017 interview). In practice, however, juvenile justice processes in Gaza resemble those in the West Bank: Public Relations Officers (PROs) in Gaza are involved at all stages of the juvenile justice process, and it is the police station that first tries to resolve the issue with parties through mediation involving tribal and religious bodies as well as NGOs. It is only when mediation efforts fail that the case is forwarded to the prosecution department and to the court.
Children have specialised police units under the 2016 law in the West Bank, as stipulated in Article 15, and this has led to the de facto existence of juvenile police over the past few years. In 2014, however, the juvenile police were merged with the ‘Family and Juvenile Protection Unit’ (Defence for Children International, 2015: 36-37). The new law turned the presence of juvenile police into a de jure existence (Muammar, 8 May 2017 interview). The law underlined the state’s obligation to provide children, upon arrest, with sociopsychological support. Also, Article 18 prescribed that if the child is arrested, the police should notify the child’s guardian and his or her protection officer. Police may detain a child for a maximum of 24 hours before transferring him or her to the prosecution department (Khattab, 25 May 2017 interview).
The 2016 law also created, for the first time ever, a juvenile prosecution department (Barak, 12 May 2017 interview). In 2017, towards a fuller realisation of the department’s specialisation, 33 new juvenile prosecutors were appointed (Khalil, 8 May 2017 interview). It appears that the specialised juvenile prosecution service has been moving rapidly towards institutionalisation, by assigning trained prosecutors to work exclusively on juvenile cases and on developing simplified manuals catering to the special needs of children (Barak, 2009). However, there is still a need to adopt a detailed procedural basis for juvenile prosecution and to put in place a computerised case-management system, in order to create effective coordination mechanisms between juvenile prosecutors, the police, judges, CPOs, detention facilities and correctional institutions (Hmidan & Gabboun, 14 May 2017 interview). As noted previously, the law empowered prosecutors to offer mediation in child cases if an agreement between the parties could be reached (Article 23). However, in practice, there is very weak coordination between prosecutors and the police (Awawdeh, 7 May 2017 interview). In fact, mediation work is conducted mainly in the police station, a practice that has had strong support from most respondents in this study.
Furthermore, the 2016 law set legal foundations for the establishment of specialised juvenile courts with full-time judges (Article 24). The law prescribes that juvenile court hearings are convened at different locations and times than those of adults. However, in practice, there is no separation between children and adults at the court of justice (Mansour & Adi, 14 May 2017 interview). More importantly, children are often handcuffed and detained for long periods – up to 1 or 2 years – before a final trial. Children are victimised within the slow juvenile judicial process (Salaymeh, Qasrawi, Sharif & Imam, 8 May 2017 interview). Judges treat children as criminals, and courts are overcrowded. Indeed, juvenile courts urgently need separate physical infrastructure (Shadid, Dana & Abuayyash, 15 May 2017 interview). Even though at least one judge has been recently assigned as a juvenile judge on a full-time basis in each district in the West Bank, these judges lack adequate and specialist training. The Judicial Training Institute has recently developed a manual designed primarily for the training of juvenile judges (Alsalamat, Ajlouni, Khalil, Misleh & Sawalha, 2017). It is important to point out that the present research indicates that the state of the judiciary in Gaza is similar – at best – to that in the West Bank. There are no specialist juvenile judges in the strip, and only a few judges in ordinary civil courts. The existing legal and procedural provisions relating to young offenders are outdated and/or not implemented.
Finally, there is a chronic shortage of juvenile care institutions in both the West Bank and Gaza: Dar Al-Amal (‘House of Hope’), for boys, and the ‘Girls Care House’, for girls, are the only juvenile care institutions operating in the West Bank. There are no juvenile care institutions for girls in Gaza at all; Dar Al-Rabie (‘House of Spring’) is the only juvenile care institution for boys in the entire strip. However, Dar Al-Rabie requires essential refurbishment and is in urgent need of specialised staff and financial support (Aburamadan, 10 May 2017 interview). In other districts, children in trouble with the law end up in police detention centres for prolonged periods (Kozmar, 8 May 2017 interview). It is important to mention that each of the three juvenile care institutions can absorb up to 20 juveniles at a time. The Girls Care House in Bethlehem has a mandate to host girls in conflict with the law. However, the number of girls in formal care institutions is reported as being low (Iskandar, 25 May 2017 interview), as most female cases are resolved through conciliation within (extended) families (Taweel, Hiemouni & Imam, 7 May 2017 interview). The House’s employees work mainly as teachers, social workers and psychologists at other institutions (Michael, 24 May 2017 interview).
The foregoing discussion clearly shows serious problems in the state juvenile system in the West Bank and Gaza in providing justice to young girls and boys. These problems are fundamentally related to the prevention of the development of a viable Palestinian state by the illegal 50-year-long Israeli occupation of the country. Alongside this and the ‘de-development’ of the state juvenile system, historical, cultural and political factors further drive people to seek justice outside formal state justice institutions in occupied Palestine.

3. Restorative justice capacities in Middle Eastern culture and society

Unlike a retributive justice philosophy, where crime is viewed as a violation of state law punishable by the state, restorative justice views it largely as a social harm that involves multiple stakeholders: mainly, the victim, society/community and the offender. It follows that the victim, offender, their social networks and the community, as well as the state’s justice institutions can deal with offences collectively. Restorative justice can be viewed as a referral alternative in itself or used along with other alternatives to physical penalty (Braithwaite, 2000; Doolin, 2007; Hill, 2008; Meier, 1998; Schmid, 2003). In the systems where restorative justice is used for juveniles, it is considered to be an alternative to the formal state justice, but not the only one. It could apply to certain offences but not to all. It may work for certain people, but not for everyone (Roach, 2000). Hence, depending on the offence and the parties involved, juvenile cases might be referred to restorative justice programmes at any stage of the formal proceedings. Indeed, restorative justice programmes often complement retributive juvenile justice systems.
Central to the values of restorative justice is that restoration is arrived at voluntarily through the active participation of all key stakeholders in an offence (Johnstone, 2002; Zehr, 2015). It is also central to restorative justice that restorative outcomes involve collectively agreed obligations with a view to reintegrating both offenders and victims into society (Braithwaite, 1989; Van Ness & Strong, 2014). While these values are central to the modern idea of restorative justice, they are also deeply rooted in Middle Eastern culture and society, including Islamic jurisprudence, traditional structures of authority and religious civil society. However, owing to the emphasis on community harmony, collective identity and a shared sense of honour and shame in Middle Eastern society (Gilmore, 1987), many Western thinkers would not view all restorative justice mechanisms and processes in the Middle East as restorative. Indeed, the heads of extended families and sheikhs – rather than individual victims and offenders – often have determining roles in the rituals and outcomes of specific dispute resolution processes. More importantly, women are generally excluded from active participation in such processes, in which young people also have little say. Despite such culturally relativistic differences, there are many strong areas of common ground between Western and Middle Eastern conceptions and practices of restorative justice. These are examined next.

3.1 Islamic jurisprudence

According to Rahami (2007), the seeds of restorative justice are deeply embedded in Middle Eastern cultures and in the Islamic legal tradition. In the Islamic legal tradition, the idea of restorative justice, including pardon and blood compensation, are well-established concepts and used in some predominantly Muslim societies, including Palestine (Traki, 2006). In Islamic jurisprudence, pardon and conciliation are strongly emphasised in criminal cases (Ouda, 2010). Very importantly, Islamic jurisprudence covers almost all forms of alternatives to (original) penalties that are proposed by and practised in modern restorative justice processes. Muslim jurists have extensively discussed the practices of blood compensation (diya), conciliation and peacemaking (solh), pardon (afou) and apology (Rahami, 2007). They have also placed emphasis on community service (service for the benefit of the victim), warning, fining, probation and reintegration of offenders into the community (Qafisheh, 2012). Moreover, these jurists have added unique mechanisms derived from the general principles of Islam that can be regarded as restorative – such as repentance, giving ‘benefit of the doubt’, preserving privacy (satr), intercession (shafaa), surety (kafala) and expiation (kafara) (Qafisheh, 2012). The adoption of these tools and mechanisms reveals that penalty is not meant per se in Islamic penal jurisprudence. If offences could be dealt with satisfactorily and offenders rehabilitated by means other than the application of penalties, the original aims of punishment are achieved. In all these processes, the victim has a central place: he or she is always provided with the possibility of getting an effective remedy and his or her relations with the offender and the society restored (Qafisheh, 2012). Thus, a restorative justice-oriented model is strongly emphasised in Islamic penal jurisprudence – either in its own right or alongside retributive justice mechanisms.
Although the term ‘restorative justice’ in its modern conceptualisation is not used explicitly in Islamic jurisprudence, by looking at the philosophy underlying penalties and at the alternatives provided to original punishments, it can be safely concluded that Islamic justice is primarily restorative. In fact, restorative justice in Islamic jurisprudence is the rule, and retributive justice is the exception (Qafisheh, 2012; Rahami, 2007). Indeed, as the long history of Islamic legal practices throughout the Muslim world indicates, severe punishments ‘are considered as just as preventive/deterrent instruments rather than being considered as an actual punishment for implementation’ (Rahami, 2007: 241).
Restorative justice comes not only from the Quran and Prophet Mohammad’s practices and sayings, but also from local pre-Islamic indigenous traditions. Indeed, Islam has endorsed and adopted specific pre-Islamic local traditions such as the practice of hamalah (compensating victims by the community when the offender cannot afford financial compensation). The idea and practice of hamalah show that the society or community also has specific obligations to both victims and offenders. All this would seem to indicate that Islamic jurisprudence has the capacity to accept certain old and new human wisdom that is in line with its fundamental tenets and the conditions of evolving human societies (Qafisheh, 2012). Indeed, Islamic jurisprudence could be part of the efforts towards developing common global restorative justice standards (Braithwaite, 2007).

3.2 Traditional and tribal justice providers

As mentioned in the introduction, a host of both civil disputes and offences are dealt with by non-state justice providers outside the state justice system, or in some collaboration with it. This study found that one of the main categories that provide this form of justice in Palestine is traditional and tribal justice providers that are categorised in this research into makhateer, mosleheen and ‘tribal judges’. This study further reveals that the most prevalent category of tribal and traditional justice providers in Palestinian society are makhateer (plural of mukhtar). The word mukhtar in Arabic means a selected or outstanding man endowed with the power to exercise authority. Makhateer, therefore, are men of influence from clans and extended families who possess what Weber (1964) refers to as ‘traditional authority’ in resolving disputes and enforcing collectively achieved decisions. Makhateer resolve various types of local disputes and deal with different offences including murder, assaults, sexual harassment, rape, theft and other forms of violence. While most makhateer operate informally outside state institutions, some are registered with the Department of Tribes and Reform (Gaza) and with the Department of Tribal Affairs (the West Bank) within the Ministry of the Interior. The latter category of makhateer provides crucial links between formal and informal justice providers, mainly in urban areas. In many rural areas, however, makhateer often use ‘village committees’ for resolving local disputes as well as other local problems. Similarly, makhateer play an important role in informal dispute resolution among Palestinians in East Jerusalem, where Israeli law is imposed on them.
Similar to the functions and roles of makhateer are those of mosleheen (also called islah-men or conciliators), who mainly operate in urban areas as male mediators and arbitrators. While makhateer and mosleheen are not necessarily exclusive categories, members of the latter are often more educated individuals who are fairly well versed in law and/or Islamic jurisprudence. Because of the solid basis of ‘islah’ in Islam, mosleheen tend to be affiliated with ulama (religious scholars) and/or religious civil society organisations – especially in Gaza and East Jerusalem. Furthermore, this study confirms that other clan/tribe-based non-state justice providers in Palestine are tribal judges. These ‘judges’ are also men of influence who usually have expertise in specific forms of disputes and use custom (urf) as a guide in resolving them. Tribal judges are often selected as arbitrators by parties to a dispute; the parties commit themselves socially and morally to abide by the decisions made by a ‘tribal court’. Although most disputes referred to tribal judges are civil, they also deal with offences. In the latter category of cases, these judges play the role of conciliators. In this way, the roles and functions of tribal judges, makhateer and mosleheen may overlap: they use conciliation, mediation, arbitration and/or compensation – depending on the nature of a case – in the processes of informal dispute resolution (Taweel, Hiemouni & Imam, 7 May 2017 interview).
One of the main practical mechanisms of tribal/traditional dispute resolution throughout Palestine is atwa. The tradition of atwa is widely utilised, and it is closely related to the notion of solh in Islam (Taweel, Hiemouni & Imam, 7 May 2017 interview). This involves a truce, or a conciliation agreement, reached between a joint delegation representing the offender and victim’s family or tribe in order to recognise the wrongdoing, show readiness to repair the damage caused and to satisfy the victim and his or her family. Atwa is normally agreed upon orally at a public session; it is also sometimes written and signed by the parties and conciliators as well as by witnesses and guarantors. It is often published in newspapers to inform the public that a specific conflict between individuals, families or tribes has been settled. As mentioned earlier, atwa and other decisions made by these informal justice providers are, largely, non-binding legally as the Prevention of Crime – Tribes and Factions – Ordinance (1935) does not provide a meaningful legal framework for regulating them. Nevertheless, governors in Palestine have created ‘tribal units’ in their respective governorates that deal with disputes and related issues (Jaradat, 2016). This is mainly because governors view traditional or tribal non-state justice providers as playing an important role in restoring and maintaining community harmony and in the prevention of violence and revenge – especially in rural areas and in marginalised urban communities (Barak & Abuarrah, 2014).
In Gaza and in East Jerusalem, most respondents saw informal justice providers not only as widely accessible, but also as fair and efficient. However, many interviewees in the West Bank remarked that notwithstanding the positive outcome that can be generated from tribal or traditional justice, its decisions are arbitrary and sometimes favour the stronger party to a dispute. State justice officials and legal professionals also said that many mediators and arbitrators are unqualified and reach decisions based on their ‘feelings’ and ‘sentiments’ (Salaymeh, Qasrawi, Sharif & Imam, 8 May 2017 interview). State justice officials strongly emphasised that only minor juvenile crime could be dealt with informally and that serious offences must be dealt with by the state justice system. Furthermore, these mediators and arbitrators are usually men, whose decisions sometimes violate the rights of women and children. This research reveals that the number of mokhtarat (female traditional mediators/reconcilers) is very limited throughout Palestinian society. Although Gaza has about a dozen mokhtarat, there were only a few influential women in the West Bank who sometimes played mediatory roles. Despite being few, these women (typically teachers or headmistresses) play important behind-the-scenes and indirect roles in informal dispute resolution.
Many respondents – in West Bank, Gaza and in East Jerusalem – agreed that tribal and community leaders do not take the ‘best interests of the child’ into consideration in their decisions, but rather the interest of families, the wider community and communal harmony. However, other respondents rejected this assertion as alien and ‘exported from the West’ by some NGOs, international consultants and Western-educated justice officials. As one mediator put it,

A juvenile wrong-doer’s family and tribe are more well-placed in knowing and assessing his/her best interest than the so-called professionals. How could a state official – who does his job for a salary – know more about a child’s best interest and be more kind to him/her than his/her family and tribe members with whom he/she has lived all his life? (Taweel, 30 July 2017 follow-up interview).

Indeed, some comparative literature indicates that vulnerable children in care institutions are sometimes abused by the very professionals who are there to care for them: for example, Valerie Braithwaite (2015) argues that modern state-sponsored child protection systems are characterised by oppression. Drawing on Young’s work (1992: 180), according to whom oppression manifests through exploitation, marginalisation, powerlessness, cultural imperialism and violence, Braithwaite maintains that these manifestations are part and parcel of the state’s child protection systems in developed societies, including Australia.

3.3 Religious and modern civil society justice providers

This study found that – alongside tribal or traditional civil society – different ‘modern’ and ‘religious’ civil society organisations in Palestine provide various types of justice to adults and children outside the formal justice system. In some cases, these organisations assist in the delivery of justice within the formal justice system. The most well-known religious civil society organisations in Gaza and East Jerusalem were rabita committees affiliated with the Palestine Scholars League (Rabtat Ulama Falastin). These committees provide mainly mediation and arbitration services, in accordance with Islamic jurisprudence. A committee normally comprises one mukhtar and about 30 registered arbitrators, who are usually men. The arbitrators are often highly educated with backgrounds in civil and/or Islamic law. The fact that Palestinian civil laws are based squarely on Islamic jurisprudence means that decisions of the rabita committees are more likely to be in line with those of the state laws and judiciary. Thus, to a significant extent, rabita committees fill the large gap with regard to justice provision; they are highly regarded and trusted (Norwegian Refugee Council, 2012). Rabita committees are generally self-reliant as international aid organisations are hesitant to provide technical or financial aid to them. This may be one reason that some respondents in Gaza and East Jerusalem did not see international aid organisations in a positive light, saying that they provide support only to secular Palestinian bodies and NGOs. Indeed, Israel has imposed severe restrictions on the provision of aid by international donors to religious civil society organisations in Palestine, viewing them as affiliates or sympathisers of Hamas.
As religious civil society organisations in Palestine lack robust financial, technical and logistical resources, modern civil society organisations – mainly in the form of national and international NGOs – play significant roles in the provision, monitoring and/or facilitation of mediation and arbitration services. This study found that there are currently three types of modern civil society organisations working in the juvenile justice sector in Palestine: (1) organisations that provide legal aid to juveniles in conflict with the law; (2) organisations that train and contribute to the capacity building of juvenile justice actors; and (3) organisations and associations that take care of juveniles to which children are referred (Office of Attorney General Juvenile Prosecution Unit, 2017). Examples of the first category are the International Legal Foundation and Defence for Children International (DCI). Various other NGOs are known as primary capacity building providers to juvenile justice officials through technical assistance: training programmes, research, bringing experts from other countries for technical support, developing procedural manuals and taking part in policy development. The work of DCI and Tdh in this sphere has been especially commended by many respondents. Some NGOs have, indeed, expressed interest – as a matter of principle – in hosting vulnerable juveniles among other child residents that they currently support (Michael, 24 May 2017 interview). Others are already hosting such juveniles under ‘social need’ cases (Bakri, 9 May 2017 interview; Said, 24 May 2017 interview).
While some interlocutors opposed the involvement of NGOs in juvenile justice, most were in favour of their engagement. Opponents feared that NGO intervention in justice-related issues may complicate a case by emphasising human rights ideals rather than ending conflicts in culturally sensitive and discreet ways (Taweel, Hiemouni & Imam, 7 May 2017 interview). Moreover, others in this category thought that NGOs might not be well placed for mediation tasks owing to their ‘remoteness’ from local communities as many are elite forums whose work is project based – and therefore elitist and unsustainable (Khattab, 25 May 2017 interview). However, most of those surveyed believe that NGOs are in strong positions to play an influential role in juvenile mediation processes. They said that NGOs might complement the work of CPOs (the West Bank) and PROs (Gaza) in mediation processes. More importantly, NGOs could perform follow-up tasks while juveniles are in care or rehabilitation institutions. Indeed, as Schwartz (2004) argues, many NGO staff in Palestine have long contributed directly to mediation processes at all levels: police, prosecution and courts help in the follow-up rehabilitative processes. Thus, both religious and modern civil society organisations in Palestine play significant roles in the provision of justice to juveniles outside the state justice system. However, there is little systematic and meaningful collaboration among these various civil society organisations, and between these organisations and the state justice system.

4. Towards a hybrid model of juvenile justice in Palestine

4.1 Hybridity and forms of interaction between state and non-state justice systems

The concept of ‘hybridity’ in the sociology of law and legal anthropology is closely connected with ‘legal pluralism’ that Merry (1988: 870) referred to as ‘[…] a situation in which two or more legal systems coexist in the same social field’. The phrase ‘legal systems’ in this context also involves non-state ‘law-like’ systems that coexist with the state legal system. However, the coexistence between state and non-state justice/legal systems is often complex, and may also be conflictual. For example, Swenson (2018: 3) categorises the coexistence and interaction between state and non-state justice systems into four distinct archetypes: ‘(1) combative; (2) competitive; (3) cooperative; and (4) complementary.’ Whereas in a ‘combative’ situation, state and non-state systems are hostile to one another, in ‘competitive’ coexistence, according to Swenson (2018: 7) ‘[…] the state’s overarching authority is not challenged but non-state actors retain substantial autonomy […]’. However, in ‘cooperative’ coexistence, while the non-state justice system retains significant autonomy, it recognises the state justice system’s general authority and is willing to work with it cooperatively. Finally, in the case of ‘complementary’ coexistence between state and non-state justice systems, Swenson (2018: 7) observes that ‘[…] non-state is subordinated and structured by the state because the state enjoys both the legitimacy to have its rule accepted and the capacity to actually enforce its mandates’. The last form of coexistence is evident even in many highly developed societies, where state legal systems provide room for various forms of non-state alternative dispute resolution (ADR) (Edwards, 1986; Stipanowich, 2004).
However, the four archetypes of coexistence between state and non-state justice systems are not mutually exclusive and may – in different social, political and economic situations – include elements from all the aforementioned four archetypes (Forsyth, 2009; Wardak et al., 2007). And when the coexistence of ‘legal systems’ is not formally defined and/or is problematic, the need for institutionalised hybridisation between various ‘legal systems’ (or elements of them) arises. According to Donlan (2011), legal and normative hybridity is increasingly a feature of modern justice systems around the world, and Palestine is not an exception. Thus, hybridity involving the blending of elements of various existing justice systems for the development of a new more effective variation is needed with regard to juvenile justice in Palestine.
What has been discussed in this article indicates that Palestinian tribal/traditional and religious justice providers, while generally male dominated and patriarchal, have vast restorative justice capacities that strongly emphasise reconciliation and the reintegration of offenders into the community. As these capacities are deeply rooted in culture and religion, Palestinian state justice officials have often taken them into consideration in their decision-making. This provides some links between state and non-state justice providers (Jaradat, Slibi & Jaradat, 7 May 2017 interview). These links are further recognised and cemented by Article 23 of the 2016 Juvenile Protection Law. All these facts clearly indicate that there are well-established links between informal and formal state justice providers in Palestine after a case reaches the police. However, no such links exist between the two systems when disputes are resolved by non-state justice providers exclusively outside the state justice system. This research reveals that it is in this latter situation that the rights of children and other vulnerable groups are sometimes violated. Furthermore, as there is no mechanism for channelling any information to the state justice system about cases dealt with exclusively by non-state justice providers, the state’s rehabilitation and reintegration services could not be provided to all young persons. The fundamental question is how to develop effective coordination among Palestinian state and non-state justice and human rights institutions, in order to monitor informal justice processes, ensuring that children’s rights and domestic laws are safeguarded.
One way to answer this question is by linking Palestinian formal and informal justice and human rights institutions within a coherent and mutually constitutive hybrid framework. As mentioned earlier, on the basis of the analysis of field data presented in this study, relevant literature and legal materials, a ‘hybrid model of juvenile justice in Palestine’ was developed. This model is examined and illustrated next.

4.2 A hybrid model of juvenile justice in Palestine

Before describing the proposed hybrid model of juvenile justice in Palestine, as illustrated in Figure 1, it is important to recall that this study revealed that young people in Palestine committed few ‘felonies’ (serious offences) under Palestinian criminal law. Most were ‘misdemeanours’ and ‘contraventions’, which are classed as less serious offences. Young people also committed various acts that were viewed as ‘deviant’. These acts were described as acts against decency/dignity, acts that dishonour families, and immoral acts. As these are general categories of deviation from social and religious norms, they are not clearly defined and addressed in Palestinian laws. The present field research indicates that while these acts were committed by both girls and boys, it was mainly young females’ acts that were viewed as deviant and delinquent. Therefore, a new sociological category, ‘morality/decency-related deviance’, has been added to the three legal categories – felony, misdemeanours, and contraventions – in the context of the proposed hybrid model.
As the state justice officials could not process cases of deviance officially, and the male-dominated tribal and religious justice providers are not always well placed to deal with them humanely, it is proposed that such cases are referred to human/children’s rights organisations that play an important role in providing justice in Palestine. Furthermore, specific forms of domestic violence – which are defined legally but parties prefer them to be treated with confidentiality – could also be dealt with by these organisations. As human/children’s rights organisations are staffed with large numbers of qualified female staff, they are more likely to understand girls’ deviance and deal with it humanely. In this process, these organisations may need to seek the assistance of formal and informal justice providers, as Figure 1 illustrates.

As Figure 1 illustrates, when a domestic violence-related case is resolved in this process by a professional children’s/human rights organisation to the full satisfaction of all key stakeholders, it may be forwarded to the juvenile court for registration. In this situation, the registered decision reached in the context of a professional non-state justice provider is to be legally binding; if parties to such case opt not to formalise the decision, a satisfactory decision would be written in an unofficial agreement letter and signed by all key stakeholders (including the guarantors). Most non-criminalised cases of ‘morality/decency-related deviance’ would also be treated unofficially in this way. Copies of the agreement are to be given to each party to the case and a third retained by the children’s/human rights organisation. Should the parties choose to make a verbal commitment to abide by the demands of the agreed decision, this option must be fully respected. However, if any party to a domestic violence-related case is not satisfied with the decision, he or she would have the option to go to the police to process the case formally.
With regard to the legal categories of offences – misdemeanours and contraventions – it has been shown in this article that people take them to both formal and informal justice providers. It was also shown that when a case reaches police stations, there exist established mechanisms of mediation in which the police, prosecution, CPOs (West Bank), PROs (Gaza) and informal justice providers are involved. These links between the state and non-state justice providers are further cemented by Article 23 of the Child Protection Law in the West Bank and by the 2017 ‘Law on Conciliation in Criminal Matters’ in Gaza.
The key issue, however, is with cases that are not taken to the police station at all, and are resolved exclusively by the male-dominated traditional/tribal and religious justice providers. It is in this situation that children’s rights are sometimes violated. Figure 1 illustrates that in order to prevent or minimise violation of children’s rights, a decision made by an informal justice provider (mainly traditional/tribal and religious) would need to be monitored and approved by a human/children’s rights organisation – through direct representation at mediation sessions or through correspondence – thereby making it eligible for registration by the courts. Once a case is dealt with informally in this collaborative way, the internally monitored and agreed decision would be forwarded to the juvenile court for further (external) monitoring. If the court did not object to the decision, it would be registered with it and would assume the status of a legally binding ruling; the ruling would be final and irrevocable. However, as Figure 1 illustrates, when any of the key stakeholders is not satisfied with a decision made by an informal justice provider, it could be referred to the police for processing in the formal justice system. It is important to mention that both the internal oversight provided by a human/children’s rights organisation and the external oversight by the court are there to ensure that informal decisions/agreement reached within traditional/tribal and religious justice providers are not in violation of children’s rights and Palestinian laws.
As for felonies, they would fall exclusively within the state justice system’s formal jurisdiction, as Figure 1 illustrates. Contrary to the logic of the proposed hybrid model, Palestinian state justice officials strongly opposed the involvement of informal justice providers in dealing with serious offences. They argued that owing to the fragility of the Palestinian state operating under Israeli occupation, it needs to exercise exclusive formal authority – through the application of state law – in responding to felonies.
Thus, as shown in Figure 1, cases of felony in the context of the proposed hybrid model are to be processed exclusively within the Palestinian state justice system; judicial rulings may result in acquittal, appeal, alternatives to detention, correction/rehabilitation order, fine or other outcomes in accordance with applicable laws in the West Bank and Gaza. However, the personal/private right aspects of felonies (haq-al-abd) could still be dealt with by informal justice providers through the use of appropriate cultural tools – including compensation, pardon and apology – that are generally in line with modern ideas of restorative justice.
In order to translate the proposed hybrid model fully into practice, by-laws (or national policy) on the links between formal and informal juvenile justice systems in Palestine would need to be developed on the basis of the insights of this research. The legislation would also define the limits and scope of the proposed internal and external oversight mechanisms mentioned earlier. However, it is important to mention that the model and its related proposed secondary legislation are applicable mainly in areas where basic state justice infrastructure exists. Nevertheless, the legislation (or national policy) could guide informal justice processes and decision-making among Palestinians in East Jerusalem and other Arab communities outside the Palestinian territories.
Finally, it is important to note that dealing with both juvenile delinquency and deviance within the framework of the proposed hybrid model may produce benefits beyond assisting in strengthening the Palestinian state’s authority through the provision of more accessible, cost-effective, speedy and restorative justice to all – girls and boys. The state’s multilevel engagement with traditional, religious and modern civil society may also provide channels of communication with ordinary people throughout this occupied but resilient society. Effective communication, which plays an important role in social integration (Habermas, 1985), may further strengthen social solidarity among the people and assist in the establishment of a unified Palestinian state that is more capable of providing effective and restorative juvenile justice to all.

5. Conclusion

Palestine’s state juvenile justice system has been influenced by civil, common and Islamic legal traditions in different phases of its development over the centuries. The current system is drawn largely on modern lines, similarly to those of its immediate Arab neighbours, especially Jordan and Egypt. However, the 2016 Palestinian Juvenile Protection Law – particularly its Article 23 on mediation – opens the door to the new ideas of restorative justice. Alongside the evolution of the state juvenile justice system, informal non-state justice institutions have mainly continued their existence, initially as a response to colonial powers and latterly in response to the illegal Israeli occupation that has prevented the development of an independent and viable Palestinian state. These institutions have also developed because of their accessibility, speed and restorative justice capacities, which have a strong emphasis on reconciliation, restoration of community harmony and reintegration of wrongdoers into the community. While this field study explores these restorative justice capacities of traditional, tribal and religious institutions, it also reveals that they exclude women. The role of a small number of mokhtarat in informal justice provision in the West Bank and Gaza is an important issue that calls for further research and requires the attention of both national policymakers and international aid organisations. Moreover, traditional, tribal and religious justice providers tend to prioritise communal harmony over the ‘best interests of the child’. It is mainly this situation that results in occasional violation of children’s rights.
From the analysis of field data, relevant literature and laws, a hybrid model of juvenile justice in Palestine has emerged. The proposed hybrid model, it is argued, provides a coherent framework linking state justice and relevant traditional, religious and modern civil society institutions in mutually constitutive ways as checks and balances on each other. This article concludes that the hybrid model proposes practical ways of translating Article 23 of the Palestinian Juvenile Protection Law into practice. It also concludes that dealing with both juvenile delinquency and deviance within the framework of the hybrid model promises to strengthen the state’s authority through the provision of more accessible, cost-effective, speedy and restorative justice to all children. This could also provide channels of communications between the state, civil society and ordinary people throughout the society and strengthen their social solidarity for the creation of an independent and viable Palestinian state.