Context

As set out in Chapter 6, above, diya comes under the jurisdiction of the shari'a courts in the West Bank by virtue of IheJordanian Law of Shar'i Procedtire 1959 (Article 2/11), where the parties are Muslim or where a non-Muslim party agrees to shari'a court jurisdiction.

Of all the governorates in the Palestinian West Bank, Hebron has a particular reputation for traditionalism, and may be viewed in some ways as a stronghold of customary and clan-based law {al-qada al-'asha'iri), reaching out to the Bir As- Saba'a (Beersheva) tribal areas to its south in the Negev (Welchman 2000: 10). Traditionally, functionaries from Hebronite families also fill considerable numbers of posts in the shar'i system. Shaykh Taysir Tamimi, the current Deputy Qadi al- Quda, is himself a Hebronite; his father, Rajab Tamimi, was deported by the Israeli occupation authorities in the early years of the Israeli military occupation.

The Institute of Women’s Studies decided to investigate the utilization of customary law processes and the institution of diya in the context of the Hebron factory fire to see how a pressing public issue was actually resolved through the interaction of different agents and systems during a period of legal transition. Using a wider notion of law and family relations, diya itself has deep roots in practices and ideologies of inter-family and clan relations. The concept of homi­cide or accidental homicide as an injury to family (legally as a civil injury or tort), as well as or perhaps even rather than a public crime, may persist in such practices. Diya is also particularly important as we consider legal reform for the contending evaluations in Islamicjurisprudence and court and customary practice in matters of diya of the relative worth assigned to men and women in com­pensatory judgments. In the case under consideration, emerging state authority, customary legal practices and institutionalized shari'a cooperated and contended on this and other matters, with the result to date of a devaluation of women’s worth, despite views and judgments to the contrary. The heterogeneity of legal practices and the cooperating and conflicting systems of authority are thus highly pertinent to an understanding of the practical intersections of shari'a principles in the Palestinian context and to projecting both the need for and the problem of legal reform. They also point to the constraints on and opportunities facing the emerging state authority in its efforts to exert a more centralized authority over these cooperating and conflicting systems. Nor is this a new phenomenon for many of those in high positions in the Authority; Botiveau (1999: 79) refers to Julie Peteet’s (1987) observations in Palestinian refugee camps in Lebanon to consider the centralizing tendency demonstrated by the PLO in the ‘fragmented legal field’. The three cases considered include one of diya, where the PLO court allowed the customary processes to run their course but ‘only after giving the protagonists the choice, and ruling accordingly’.

The conduct of the Palestinian Authority in the aftermath of the Hebron factory fire provides an illustration of how elements within it sought to handle a situation involving similarly different tendencies and aspirations, although this time in the context of emerging state authority and an active though constrained legislature.

The IWS investigation occurred about nine months after the incident, prin­cipally through interviews with victims’ families and through secondary sources such as reports by local labour rights organizations and the press. These were followed in November 2001 with interviews with the Acting Qadi al-Quda in the West Bank, Shaykh Taysir Tamimi, and again with the families of the victims, as well as contacts with the public prosecutor in Hebron.