Customary law: lives at half value?

Although customary law ended up providing a more active and effective process of reparation than did the public law, it nevertheless manifests many short­comings. Among these, there is the fact that it is common for clan relationships to be used to pressure the victim’s family to make concessions to that of the wrongdoer, under the rubric of forgiveness and the inevitability of the loss - the allusion to ‘fate’.

Clan-based politics and processes have in fact been officially encouraged by the Palestinian Authority; an early Presidential Decree (no. 161 for the year 1995) established a ‘Clan Affairs’ Department affiliated to the president’s office (Jad et al. 2000: 51) leading to a resurgence in clan-based affiliations, such as the revival of hamula (clan) associations and their deployment in local and national politics. The effects of this type of action are apparent in the case of the Hebron factory fire.

In customary or clan-based law, there are immediate arrangements for a truce (suspending the possibility of blood revenge) and a peace offering which have to be put in place before any settlement can be made (la tatyib qabl al-tatbib').^b2 Immediately after the fire at the factory, notables (wujaha^t) from the Hebron area convened to negotiate these preliminary arrangements.

As a peace offering (firash al-'atwa), 2,500 Jordanian dinars (JDs) were paid to each of the victims’ families and the period of truce between the wrongdoer and relatives of victims was set at one year. The amount of compensation money (here termed al-diya al-mohammadiyya) to be paid by the guilty to relatives of the victims was agreed upon by the two sides in the presence of the notables. According to relatives of victims, the amount agreed upon was given as a hundred female camels, forty of them pregnant, or 4.5 kg of gold, worth JD 35,000, for each victim. The figure of a hundred camels is the ‘classical’ diya for homicide.⁵⁴ This amount represents an equal valuation of a woman’s life with that of a man, and was set by asking the opinion of local 'ulama, notably the Deputy Qadi al Quda, Shaykh Taysir Tamimi. However, at the time and later, many contradictions arose as to whether or not a woman’s diya should be of the same value as that of a man. Some held that a woman’s diya should be half the amount of a man’s, others held that it should be equal, while a third opinion held that specific circumstances should be taken into account and that in effect such decisions should be made on a case-by-case basis.

The notables constituting the jaha (i.e. those whose role it was to facilitate and oversee the arbitration and settlement process between the two parties, referred to in this case as the ‘committee for clan reconciliation’, Iajnat al-islah al-'asha’iri) advised relatives of the victims to request the release of the factory owner from prison.

As noted above, as a first payment from the total amount of the diya, the sum of JD2,500 was paid to each family. If the factory owner were to prove unable to fulfil his obligation, it would have been possible that the tribal system repres­entatives {wujaha^f) would intervene to pressure the victims’ families to settle for the amount they had received and to forfeit their rights to the sum outstanding. In the event that the families refused to forfeit their rights, they would have been able to resort to the judicial system to sue for what was owed them.

However, in the intervening period, the balance of power’seems to have shifted away from the victims’ families. In particular, the ‘classical’ diya rule valuing a woman’s life at half of that of a man was reasserted and in the end only half the full diya as originally agreed was held to be payable. This information, provided by Shaykh Tamimi, was confirmed by the bereaved families in an interview with an Institute fieldworker in November 2001. After the factory owner was released from prison, he paid JDi 1,000 to each family, bringing to JD13,500 the total amount paid by the owner per victim within the year of the hudna period.