Ideology and Practice:
The Legal System in Gaza under Hamas
Nicolas Pelham, June 2010
Gaza under Hamas offers a laboratory – the first in the Mediterranean basin – to
analyze the evolution of the Muslim Brotherhood programme as it transits from
rebellion and opposition into power and governance, and wrestles with the translation
of ideology into practice. This paper documents the extent of Islamic legal application
since Hamas’s full takeover of Gaza’s executive, judicial and legislative branches in
June 2007, and draws preliminary conclusions about how political and administrative
exigencies inside Gaza and the strategic posture of external parties are shaping the
programme for Shari’a implementation. It sheds light on how a broad-based
movement encompassing a range of Islamist trends juggles the competing demands of
its committed rank-and-file with those of its environment.
I. Before the 2007 Takeover of Gaza
Of all the Middle East’s Islamist movements, Hamas in origin was perhaps the least
exercised with the business of statecraft, institution building and governance. Founded
by Gazans in the midst of the first Intifada in 1987, it enjoyed the revolutionary élan
of a movement untainted by office: as a resistance movement, it aspired to wage Jihad
until it had rid all of Palestine of Israeli rule; as a social organisation, it extended its
informal power through gradual propagation of its parallel network of social welfare
outside official institutions. The 36 articles of Hamas’ 1988 charter make scant
mention of how it intended to govern should it achieve the objective of ending the
occupation. Article 8 describes Hamas’s slogan as “Islam is the constitution”; Article
9 defines Hamas’s objective as “announcing the restitution of a Muslim state” – its
sole use of the term, “Muslim state”, and Article 27 affirms Hamas’s opposition to the
PLO’s goal of “a secular state”. But the Charter neither adds further details about how
the movement intended to exercise power, nor offers commitment to apply Shari’a
law once attained. Article 11 reflects the tenor of the charter: it describes Hamas’s
strategy as the establishment of an Islamic Waqf, not a state.
The launch of the 1993 Oslo process creating a self-governing Palestinian National
Authority (PNA) prompted Hamas to develop its political theory in response. Initially
its inclination remained on operating outside government. But overtime, and partly as
a result of the pressure it came under from the PNA as well as the Israeli authorities,
increasingly it focussed its attention on exercising influence within the PNA as well.
As the movement expanded, it diversified its energies from waging the armed struggle
for Palestine, to the political struggle for the PNA. It contested neither the 1996
legislative elections nor the 2005 presidential election, but did participate in the
PNA’s municipal and legislative elections in 2005 and 2006.
In the 2006 campaign, Hamas’s parliamentary wing – the Reform and Change party –
campaigned under the slogan “Islam is the solution”, but again gave few details about
how. Its manifesto, published shortly before the elections, details the legislative
changes and administrative changes it sought to introduce. Its fifth chapter, entitled
Legislative Policy and Judicial Reform, states Hamas’s intention inter alia to:
i. Make Islamic Shari’a law the principal (not only) source of legislation in
Palestine (intensifying the 2003 Basic Law provision that “the principles
of the Islamic Shari’a” a be “a principal source of legislation”)1;
ii. Amend - but not replace - the Palestinian Penal Code, the 1936 Criminal
Ordinance compiled by the British mandate authorities
Tellingly, both commitments focused on gradual reform, not revolutionary change, of
existing PNA structures and law codes. These two modifications aside, the manifesto
is strikingly devoid of commitments to Islamise society. After winning the 2006
legislative elections, Hamas was for the most part too exercised on maintaining a
functioning government against external and internal spoilers to focus on possible
reforms. Israel neutralised its legislative capacity by detaining its West Bank
parliamentarians, depriving it of its parliamentary majority, and rendering the PLC
dysfunctional.
II. After the Takeover
In June 2007, Hamas addressed the limbo by seizing full administrative and security
control over Gaza. Within a week, it overpowered the security forces under Fatah
leader and Palestinian President Mahmoud Abbas’s command, and acquired
unfettered control inside Gaza to install a new order. Its forces ransacked the
prosecution service, and when the Palestinian Authority in Ramallah under Abbas’s
command called out Gaza’s law-enforcement officers and judges on strike, rendering
the judicial system defunct,2 Hamas officials acted to fill the vacuum.3 Further giving
the movement a free rein to redesign Gaza and severely hampering external influence
over the Strip, the international community, which had previously financed and
overseen a judicial reform programme, boycotted Gaza’s authorities. Moreover, the
old system was deeply-flawed: impaired by the previous security chaos that prevailed on
Gaza’s streets, the old judicial system had long been dysfunctional. Its judiciary was plagued
by intimidation, and a backlog of 27,000 cases. The corpus of law itself was almost as
messy as its application: it consisted of a polyvalent legal system reflecting Gaza’s
multiple rulers over the previous century – Palestinian Authority, Israeli occupation,
Egyptian rule, British Mandate and Ottoman. Criminal Law, for instance, was rooted
in the 1936 Penal Code Ordinance of the British Mandate [qanun al-‘uqubat],
partially modified by Egypt and Israel. Land law and Civil Law were based on
Ottoman codes, with British amendments. Personal Status Law was administered by
the Shari’a Courts, which applied religious codes. Even these were multi-faceted:
Gaza follows the Shafa’I school in its ibadat (religious worship) and the Hanafi
school in its mu’amalat (financial transactions}In short, Hamas possessed both the
power and the motivation to dispense with the existing corpus of law.
Yet despite the apparently clean field Hamas had to implement its new order, the
movement was divided between ideologues and reformists on what writ should
govern the mini-state it now controlled. The former maintained that Hamas should not
pass up the opportunity to institute shara’ allah, the law of God, and sought to expand
1
The amended 2003 Basic Law tempers the original 1997 Basic Law which provided that “the principles
of Islamic Shari'a shall be the main source of legislation”.
2
Only 30 out of 650 employees remained at work. Interview, justice ministry official, Gaza, June 2010.
3
“Prosecutors and judges are not working. They’ve adopted Ramallah’s position and so we’re filling the
vacuum and building a system that will not be corrupt”. Interview, Ahmed Yousif, Gaza, 10 July 2007.
the informal system, issuing fatwas and establishing committees across the Gaza Strip
to administer informal Sharia codes. The latter argued that Hamas should function
through the formal judicial, legislative and executive institutions of the PA, and
gradually work to islamise them. Here, too, the movement was internally riven
between those advocating a complete overhaul of the legal codes, and those
championing gradualism.
Initially, the ideologues were in the ascendant. In the midst of their four-day battle for
Gaza, Hamas’s forces relied on leading Hamas scholars to issue fatwās to sanction
their actions. Marwan Abu Ras, the leading scholar and head of the Muslim Scholars
League, an extra-judicial association of Muslim clerics which served as the
movement’s legal advisory council,4 licensed for instance the killing of Samih al-
Madhoun, a commander of the Fatah-allied Al-Aqsa Martyrs’ Brigades.5 Bereft of a
functioning criminal system following the takeover, Hamas began formalising this
process within a month. On 22 July 2007, Hamas announced that it had created an
Islamic legal committee to replace the PNA’s prosecution service, headed by Abu
Ras.6
But after the takeover, the gradualists were quick to assert their influence by
reactivating the pre-existing legal system. In September 2007, the Hamas government
announced the formation of a Higher Justice Council in September 2007, which
assumed the presidential prerogative of appointing judges. Hamas’s revival of the
Palestinian Legislature, the PLC, followed a similar trajectory. After a two-year
hiatus, Hamas reactivated the PLC in Gaza by instituting a system of proxy voting for
Hamas’s detained parliamentarians. Boycotted by the PA government in the West
Bank and Fatah, it functioned as a Hamas-only legislature. In approving and
proposing legislation, the PLC’s Legal Committee played a commanding role, vetting
and sometimes originating all legislation.7 Its six members are primarily though not
exclusively ulama’, or Shari’a law professors from the Law and Shari’a Faculty at
Gaza’s Islamic University, Hamas’s foremost pedagogical institution.8 None of its
members are practising lawyers, or trained in secular law. Its head, Ahmed Abu
Halabiyeh, an Islamic University professor in Sharia, sees the Committee’s role as the
4
The League is part of the International Muslim Scholars League, headed by Sheikh Yusuf al-Qaradawi.
5
Interview, Marwan Abu Ras, Gaza City, September 2007. Madhoun’s execution was broadcast in full on
al-Aqsa, replete with scenes of him begging for life and a mob dragging his body through the streets.
6
Abu Ras’s post-takeover fatwas included the suppression of Fatah-organised prayer rallies; the ban on a
health workers strike; Abbas’s designation as an apostate for negotiating with Israel; and approval for the
military prosecutor’s rulings. Interview, Abu Ras, Gaza City, September 2007
7
Three bodies can present laws to parliament – the Cabinet, any parliamentarian and one of the PLC
committees. However, all proposed legislation is studied and vetted by the Legal Committee “clause by
clause” before submission to the PLC. Interview, PLC legal committee director, Amjad al-Agha,
September 2009. The Committee’s power and composition has been compared to Iran’s Council of
Guardians.
8
Chairman Ahmed Abu Halabiyeh, a professor of fiqh and usul al-din at the Islamic University’s Shari’a
and Law Faculty, holds a PhD and from the Usul al-Din Faculty of Imam Mohammad Bin Saud
University in Riyadh, Saudi Arabia. Its other five members are Dr Younes al-Astal, who holds a PhD
from Mecca University; Dr Mushir al-Masri, who has an MA in Shari’a Studies from the Islamic
University; Dr Mohammed al-Shar, a pharmacist; and Jamila al-Shanti, who holds an MA in Pedagogy
and a doctorate in English, and previously lectured at the Islamic University. When the revised Penal
Code was first proposed, Muhammad Faraj al-Ghoul headed the committee. In November 2008, he was
appointed Justice Minister.
progressive Islamisation of legislation: “We were open that Islam is the solution, so
our programme is to apply the Shari’a,” he says.9
From the first it revealed a readiness to dispense with the 1936 Penal Code with
Shari’a Law. The first law submitted to the revamped Gaza-based PLC was the
Military Justice Law. Passed in March 2008, the law retroactively ratified the military
tribunals which the Hamas government had established two months after the takeover.
These military courts applied executive rulings rather than the 1936 Penal Code not
only to serving Hamas security personnel, but also – due to their fears of sabotage - to
the tens of thousands of PA security personnel whom President Abbas had ordered to
stay home, and to “anyone who attacks military personnel or installations, including
the police”.
More fundamentally, the Legal Committee worked on drafting a new Criminal Code
to replace that of the British Mandatory period. It worked closely with Sharia scholars
from the Islamic University to draft an Islamic code. Without a prior Palestinian text
to work from, they drew on primary Islamic legal sources and previous experiments in
coining Shari’a-based penal codes in the region, specifically those of Iran, Libya,
Yemen, Saudi Arabia and above all Sudan.10 The Committee explicitly ruled out
Turkey as a model on the grounds it was a secular state, “applying the laws of
Ataturk.”11 The committee finished its work in mid-2008. Legal Committee head Abu
Halabiyeh justified the eclectic pick-and-mix result on the basis of ijtihad (the method
of legal derivation through the exercise of judicial discretion): “The committee
comprises mujtahids, (those who exercise ijtihad) who can take from which ever laws
and law schools, as well as from other sources.”12
The draft contained 15 chapters and 214 clauses. Articles 211 and 212 rendering all
previous texts – the old secular penal codes -- obsolete. In place of the Penal Codes
punishments of imprisonment and fines, it proscribed the hudud [Quranic limits of
capital and corporal punishment] and qasas [Articles 40-44] – the Shari’a principle of
equitable retaliation: he who kills with an axe should die by an axe. It provided for the
stoning, lashing and imprisonment of fornicators [Articles 152-154]; the payment of
blood-money (diya’) [Articles 52-55], priced in camels or their equivalent; up to 40
lashes for consumption of alcohol [Article 84]; up to 25 lashes for playing cards or
gambling [Article 86]; and execution for an impenitent apostate [Article 134].
Legislators justified the changes both on religious and legal grounds. As regards the
latter, they presented the draft as a modernisation of outdated legislation. Whereas
English criminal law had repeatedly changed in seventy years, Gaza’s had largely
remained static. The 1936 Penal Code for instance made no provision for electronic
copy-right; Article 200 of the draft law, by contrast, applied Shari’a law to modern
practices of computer and Internet crime. The drafters also argued their code was
more suited to Gaza’s needs, for instance, it introduced a provision whereby relatives
of a victim could grant amnesty on payment of blood-money, in accordance with
Gazan custom. In another significant update, the draft preamble stated that the law
9
Interview, head of the Legal Committee, Ahmed Abu Halabiyeh, Gaza Ctiy, September 2009.
10
Interview, director of the Legal Committee, September 2009. Interestingly, the director had an MA in
Criminal Law from Tunis University.
11
Interview, head of the Legal Committee, Ahmed Abu Halabiyeh, Gaza Ctiy, September 2009.
12
Interview, head of the Legal Committee, Ahmed Abu Halabiyeh, Gaza Ctiy, September 2009.
applied to Palestine, which it defined as territories under the PA’s jurisdiction, thereby
excluding Israel and recognising the de jure existence of two states.13
In its efforts to market the draft, the Legal Committee organised a number of focus
groups with different constituencies, including women’s rights activists. 14 There were
private – though few public – expressions of concern. At the end of 2008, the Legal
Committee presented the draft as a bill to the PLC, which debated its merits, but
reserved judgement.15 In June 2009, the PLC backed by the government suspended
further discussion of the draft Shari’a penal code, leaving Gaza under Hamas still
subject to the British-based Penal Code and the PA’s largely secular Basic Law.
III. The Case for the Gradualists
The committee’s failure to apply the Shari’a was largely due to an opposing school of
pragmatists and gradualists inside Hamas who opposed a fast-track application of
Shari’a law on the basis of maslaha, or communal interest, determined on the
following calculations.
a. Anticipated negative external reaction
Parliamentarians noted that imposition of Sharia Law would further stigmatise
Hamas, and expressed concern that detractors would criticise the movement for
converting Gaza into an Islamist emirate, and thereby undermine the faction’s efforts
to break free of its isolation and project its image as compatible with regional and
international norms. In the words of the PLC’s director, charged with administering
parliamentary affairs:
Hamas does not want to enter into conflict with the international community,
and bolster fears that Islamic movements are risky. It fears foreign powers will
say we’ve created an Islamic emirate with no respect for democracy and a
constitution. Hamas is not a risk to the region, and we are not trying to
Islamise the laws.16 Hamas has said many times that we want an independent
state within 1967 borders, but it seems the international community isn’t
listening.17
Egypt, a neighbour hostile to Islamist groups on which Hamas was dependent for its
external access, was of particular concern. A Hamas official who had earlier advocated
an overhaul of the legal system soon tempered his stance: “The people in Ramallah are
13
“Palestine: the whole geographical area over which the system of government of the Palestinian
National Authority extends.” Article 1 (definitions) of the draft Penal Code. See al-Hayat, 24 December
2008. For further Hamas declarations in this vein see for instance, Meshal: Hamas seeks Palestinian state
based on '67 borders, Haaretz, 5 May 2009
14
Interviews, Legal Committee members and female human rights lawyer, Gaza City, September 2009.
15
Hamas government Justice Minister Muhammad Faraj al-Ghoul, quoted al-Rissala, 12 November 2008.
“We presented the draft revised Penal Code following discussions in November 2008.” Interview, head of
the Legal Committee, Ahmed Abu Halabiyeh, Gaza City, September 2009. The first reading of very
different amendments to the Penal Code had been held before the 2006 elections.
16
“We stopped the criminal law because the international community is against Islamising the law. As an
Islamic movement, we decided not to Islamise everything now.” Interview, Madhoun, Gaza City, 4
September 2009.
17
Interview, Madhoun, Gaza City, 4 September 2009.
trying to stigmatise Hamas as extremist. But an Islamic emirate will not come about in
Gaza”.18
b. Exacerbating intra-Palestinian division
The Hamas government remains sensitive to criticism that its takeover of Gaza has
intensified the geographical and political divide separating Gaza and the West Bank.
From its formation in 1994, the Palestinian Authority had sought to reunite the
separate legal frameworks which had governed Gaza and the West Bank since 1948
when the former fell under Egyptian rule and latter under Jordanian. And its elected
legislature had passed laws applicable to both territories, including the Basic Law.
The application of Shari’a law in one part of the PA alone, it was feared, would
further cement the divide.
c. Internal reaction
Hamas parliamentarians shied from further burdening a population already oppressed
by closures, siege, isolation and military offensives.190020Officials cited the
inapplicability of the hudud punishments for theft if a population was poor and war-
ravaged.20 Asked whether Hamas sought to establish an Islamic state in Palestine,
Hamas’s politburo head in Damascus, Khalid Meshaal, replied:
Our priority as a national liberation movement is to end the Israeli occupation
of our homeland. Once our people are free in their land and enjoy the right to
self-determination, they alone have the final say on what governance system
wish to live under. It is our firm belief that Islam cannot be imposed on the
people. We shall campaign, in a fully democratic process, for an Islamic
agenda. If that is what the people opt for, then that is their choice… We do not
deny other Palestinians the right to have different visions. We do not impose
on the people any aspects of religion or social conduct. The hudud and other
aspects of Shari’a law have to be accepted by the people to be applied.21
Tellingly, at the same time as discussion on the draft bill was suspended, Hamas
leaders sought to convey the impression that the movement was relaxing rather
tightening its Islamist dictates. The authorities sponsored a film, licensed public
theatre with an almost all-female cast, and for the most part permitted men and
women to mingle together on beaches and in cafes. Hamas’s interior minister, Fathi
Hammad, explicitly stated that his security forces sought to “lighten the load of the
population in public spaces. We want to provide entertainment and are not trying to
impose any system on the population. Men and women can go to the beach together.
We are enlightened and moderate, and will wait and give the people three or four
years to adjust to the situation.”22
18
Interview, Ahmad Yusif, then prime ministerial advisor, Gaza City, February 2008. For instance, Tayssir
Khaled, a member of the PLO executive committee and a leading member of the Democratic Front For
The Liberation Of Palestine (DFLP), lampooned the initiative as designed to turn Gaza into a quasi
Taliban Emirate.
19
“We don’t want to impose new burdens at a time when the population is already under siege. We hope
that when the siege lifts we’ll be able to present the revised Penal Code to the PLC.” Interview, head of
the PLC Legal Committee, Ahmed Abu Halabiyeh, September 2009.
20
“You have to provide enough food before you can convict for theft.” Interview, Madhoun, Gaza City, 4
September 2009.
21
Khalid Meshal interview, The New Statesman, 17 September 2009. “We want the courts to apply Sharia
law, but we won’t compel the people.” Interview, Marwan Abu Ras, Gaza City, March 2008.
22
Interview, Hamad, Gaza, July 2009.
d. Gaza’s institutional capacity
Finally, on practical grounds Hamas officials noted the lack of institutional capacity
and qualified personnel in Gaza to administer a new system, particularly given the
other demands on its rapid transition from an organisation specialising in social
welfare and armed struggle into a bureaucracy and government. “Hamas understood
you had to have an Islamic government, judiciary and political system before you can
apply Islamic Law,” said the PLC’s general-director, al-Madhoun. “We are not afraid
to say we aspire to an Islamic system, but we don’t have one now.”23 Two years after
the takeover, Gaza remains short of qualified judges, despite allegations they are
sympathetic to Islamist ideology. For the most part they have studied PA not Shari’a
laws, and are widely considered lacking in requisite experience.24 The Islamic
University has launched course in Shari’a law, but only intake of students has so far
graduated. The movement continues to rely heavily on experts who had acquired
Shari’a expertise abroad, commonly in Egypt and Yemen.
To bolster their arguments of maslaha, legislators and decision-makers in Gaza cited
the precedent of prophetic and early Islamic tradition. Legislators repeatedly
emphasised that the “hudud were the last laws to be revealed to the Prophet
Mohammed, and in the first 40 years of the Islamic era were implemented by the
Prophet and the Caliphate on only six occasions.”25
IV. The Salafi Backlash
From the first, Hamas’s decision to maintain the PA’s non-Shari’a judicial system and
legal framework evoked opposition and dissent, some of it internal, from Islamist
ideologues. This was particularly pronounced amongst Salafi activists, who acolytes
advocate strict adherence to practices of the Prophet Mohammed’s followers and
reject gradualism in Shari’a application. Statements circulated on Gaza’s streets in the
name of such organisations as the Blessed Jihadi Sunni Salafi path, “appealing to all
active ulama’, upright preachers and righteous mujahideen who strive to rule by the
Shari’a of God on His earth” to make “incumbent on those who rule to please God
before pleasing the people” and guard against “violations spreading in our country…
with official sanction.”26
In defiance of Hamas’s gradualism, some armed groups unilaterally imposed their
interpretations of Islamic law, targeting Gaza’s internet cafes, barbers, Christian
meeting-places and non-Muslim schools, such as the American School as purportedly
anti-Islamic manifestations. In his Friday sermon in mid-August 2009, a popular
Gazan preacher, Abdellatif Musa, laid down the gauntlet and proclaimed the
23
Interview, Madhoun, Gaza City, 4 September 2009. He continued, “You need to have Islamic
institutions and experts, and we don’t, so that’s why we stopped.”
24
Many judges appointed by Hamas are said to lack the 10-years legal experience required to join the
circuit. A few, however, are trained in both disciplines: a senior Civil Court judge for instance graduated
from the Law and Shari’a Faculty of Sanaa University, Yemen.
25
Another PLC official noted that Iran had insisted its Revolution would apply the hudud but had yet to
do so. “You have to supply all the population’s needs before you can apply the hudud.” Interview, Akram
Suhar, director of the PLC’s monitoring committee, Gaza City, September 2009.
26
Statement regarding the explosion which occurred in Khan Younis City, issued by Shabab Ahl al-Sunna
wa al-Jamama Aknaf, Beit al-Madqis, Filastin, in possession of author. www.taheed.ps
formation of an Islamic emirate in Gaza governed according to the Shari’a. His armed
followers, who called themselves Jund Ansar Allah, declared their allegiance. Ahead
of the sermon, posters circulated in Rafah in the build-up to the sermon announcing
Musa’s coming address “to the Ismail Haniya government”. Website portraits
accompanying the announcement evoked the imagery of the resistance groups who
formed an Islamic Emirate in Iraq. Within hours, Hamas stormed the mosque,
overwhelmed the armed group killing 28 fighters, and crushed the Islamist rebellion.
V. Reforming Gaza’s Legal Process
While quelling the immediate challenge, the uprising provided ammunition to
Hamas’s ideologues who continued to deride Hamas’s Islamisation process as half-
baked and disingenuous. While stalling on wholesale Sharia application, it sought to
relieve this pressure with a programme of gradual reform of Gaza’s formal and
informal arbitration mechanisms towards accepted Sharia tenets.
a. The formal legal sector
As noted, rather than refashion an alternative system, the gradualists within Hamas
rather sought to re-establish the PA’s secular institutional framework including its
legislature, government departments, courts and law-enforcement mechanisms.
Eroded to the point of collapse by renewed confrontation with Israel during the
Second Intifada, widespread corruption, clan-based lawlessness and factional in-
fighting, in so doing, Hamas accepted to maintain the PA system.
i. The Legislature
After re-establishing their quorum by using proxy votes for parliamentarians detained
by Israel, Hamas parliamentarians cautiously resumed the PLC’s legislative functions,
seeking to revive the pre-existing constitutional framework. Laws are drafted by the
PLC’s general-director Nafiz Madhoun – a PhD graduate in law from Minnesota
University, who says he seeks “to find a compromise between Islamic sources and the
needs of the people.”27 In accordance with PA procedure and constitutional practice,
the PLC submitted laws for ratification to Palestinian President Mahmoud Abbas,
until it deemed the latter’s term to have expired in January 2010. Although Abbas
refused to sign them, the Hamas government argued that under the Basic Law any
draft law not signed within a month by the President automatically became law.28
Unsurprisingly, Ramallah rejects this interpretation.29 A department of the Justice
Ministry, the Diwan al-fatwā wa-l-Tashri', the Bureau of Legal Consultation and
Legislation,30 maintains the Official Gazette, regularly updating an online addition. In
the printed version of the Gazette, it has replaced President Mahmoud Abbas’s photo
on the inside cover with that of the Hamas government’s prime minister, Ismail
Haniya.
27
Interview, Madhoun, Gaza City, 4 September 2009.
28
“If a law is not ratified by the President within a month, the law is ratified by the authority of the law.”
Interview, Madhoun, Gaza City, 4 September 2009.
29
The Ramallah-based government has prevented the functioning of the PLC in the West Bank, and in its
absence continues to rule the West Bank by administrative decree.
30
Prime Minister Ismail Haniya’s legal advisor, Mohammed Abed, heads the bureau. A parallel bureau
operates out of Ramallah.
There has been no great rush to legislate. The PLC meets infrequently, often no more
than once a month. It passed seven laws in 2008 and five in 2009, making a total of 14
since Hamas won the 2006 elections.31 About half have dealt with national (the
safeguarding of the right of return, Jerusalem and resistance) or administrative issues
(for instance, an amendment to the penal code easing the standard of evidence
required to detain and indict drug traffickers;32 and a law investing parliament with
authority to declare an amnesty for prisoners under particular circumstances).
While Hamas parliamentarians suspended a wholesale application of Islamic law, a
few laws passed by Hamas have focussed on Islamising existing articles of legislation
in an attempt to produce greater congruence between the PA legislation and Sharia
tenets. In this context, there are four principle legislative changes since the June 2007
takeover:
a) Permitting a woman to retain her father’s surname not her husband’s.
This law passed in March 2008 marked the PLC’s first change to the personal
status code. In accordance with the Shari’a, it enabled women to appear before
a committee to re-register her name under her father’s not husband’s surname.
b) Easing custody laws: Given the large number of fatherless children left by the
January 2009 Gaza war, legislators passed a law in its aftermath amending the
Personal Status Code to allow widows to retain custody of their children until
the age of 15 instead of 7. The amendments do not apply in case of divorce.
The law cites no scriptural reference, although the Legal Committee head
attributed the decision to a liberal reading of the al-mudawwama al-kubra of
Imam Malik.33
c) Criminalising sex between consenting adults outside wedlock. In March
2009 legislators criminalised adultery (zina), stipulating a penalty of six years
imprisonment for illicit consensual-sex, the same penalty as the Penal Code
provided for non-consensual sex. (Significantly, in its drafting of the law, the
Legal Committee had side-stepped application of hudud punishments, in
contrast to Saudi Arabia, resorting instead to the Sudanese practice of
imprisonment).34
d) Official collection and distribution of zakat: In September 2008, the PLC
passed a law reorganising zakat, or alms collection. It provided for the
establishment o of a 15-member nominally independent Islamic Zakat
Authority to collect mandatory Zakat payments from commercial enterprises,
rated at 12 per cent of income, and voluntary payments for individuals, to be
off-set against income tax. It was also authorised to distribute them. Derived
from Yemeni, Malaysian and specifically Sudanese Zakat laws,35 it calculated
31
Interview, PLC legal committee director, Amjad al-Agha, September 2009.
32
Under new legislation, drug-traffickers and users, can be charged even if they are not in direct
possession of drugs. The law was introduced to deal with the influx of drugs though the expanded tunnel
networks.
33
More liberal still, the head of the Shari’a Courts under the Ramallah-government, Sheikh Taysir
Tamimi, ruled that a mother could retain custody of her children until aged 15, even if a divorcee. A
Hamas-appointed judge in Gaza, however, ruled against Tamimi’s decision.
34
The head of the Legal Committee said he looked forward to a time when the hudud could be applied,
but said current circumstances rendered it inappropriate. Interview, Gaza, 4 September 2009.
35
Interviews, PLC legislators, Gaza, September 2009. In addition, the PLC’s legal committee
commissioned an advisory group from the Islamic University’s Faculty of Shari’a and Law to study
primary Islamic sources, fiqh, and legislation in contemporary Muslim states.
alms payments according to traditional measurements – in gold, camels and
sheep. Individuals who own more than 85 grams of gold or 595 grams of
silver are encouraged to pay 2.5 percent of their wealth. The law provided for
the centralisation of both collection and distribution of Zakat, much as in the
West Bank. It aims to place all Gaza’s 120 Zakat committees, of which a third
had hitherto been government-run, under a single regulatory authority. At a
time of dwindling payments and rising need, the law is perceived as raising
taxes under the cover of Islam.36 The authorities have hesitated to implement
the law, although have planned to introduce it during Ramadan in August
2010,
ii. Cabinet and administrative decrees
In the absence of a functioning legislature in its first year in office, the Hamas
government under Prime Minister Ismail Haniya has issued scores of administrative
decrees. That practice has continued despite the revival of the PLC’s legislative
capability. Some seek to apply Islamic norms. The most publicised – the requirement
for female lawyers to cover their heads in court – was formally reversed due to public
pressure, although in practice remains in place.37
iii. The courts
To ensure greater congruence between the judges’ adjudications and the Shari’a, the
Hamas government at the outset moved to establish a more cooperative judiciary.
When judges responded to Hamas’s June 2007 takeover by remaining loyal to Abbas
Presidency not the Hamas government, Prime Minister Ismail Haniya formed a
Higher Justice Council in September 2007, which assumed the presidential
prerogative of appointing judges. After months of stand-off, the Council’s head, Abd
al-Raouf al-Halabi, entered the Supreme Court with an armed Hamas escort. In
response, the entire judiciary went on strike. Seizing the opportunity to sweep a
recalcitrant judiciary aside, Halabi gave Gaza’s judges a week to return to work or
face suspension. Only one heeded his warning, and the rest were dismissed, and a new
batch of judges appointed in their place. Fearing a similar fate, the lawyers’ syndicate
in January 2008 suspended its strike, paving the way for its 750 members to return to
work. By February 2008, Gaza’s criminal courts were again functioning.
Some in Gaza’s legal community have praised the new intake of judges for their
efficiency and resistance to bribes. Rulings are enforced, and judges apparently work
longer hours than previously. The gradualists within the government have played a
dominant role in the process: PA laws including the Penal Code remain the basis for
36
“We approved the Zakat law, because we need money for people to eat. Such laws are not purely
Islamic: it’s another form of income tax adding a further system to collect food for the people.” Interview,
Madhoun, Gaza City, 4 September 2009.
37
In a notable ruling on 9 July 2009, the Higher Judicial Council under Abdel Raouf al-Halabi ordered
lawyers to dress respectfully in the court-room, including in the case of women by donning “headscarves
or their equivalent”, and by not – added a judicial official, wearing blouses that expose their cleavages to
judges. Interview, Gaza City, June 2009. Officials argued that the order sought to reinforce decorum into
a courtroom where custom had grown lax. Given that the decree sought to uphold a British not Islamic
dress code in court (a black robe, white shirt and tie for men), officials argued that this was not an Islamist
measure designed to rid the court of its foreign traditions, but rather the reverse.
adjudication; further unsettling some leading traditionalists, appointments have
included two woman judges, including the promotion of to the Appeals Court, 38 which
though in accordance with PA practice is controversial within Islamic tradition.39 But
overall, the judges’ apparent lack of formal training – many were young lawyers
lacking the ten years legal experience required for appointment as a PA judge – have
made them more pliable both to the executive and to lawyers who can make Quranic
allusions or cite rulings based on based on fiqh, further eroding the secular writ. While
there has been no formal change of legislation, the authorities refer judges to the 2003
Basic Law, to emphasise that the Shari’a remains a principle of Palestinian law-
making. Lawyers say that judges are reluctant to accept fatwās from jurists, but will
accept Quranic citations on the basis of bab al-istinas – for advice. Hamas’s Higher
Justice Council, too, has been able to select a judiciary more sympathetic to Shari’a
application. Many – though not all – have an Islamist background. Formerly there
were two Christian judges, now all are Muslim.40 And salaries are paid by Hamas.
To train a new cadre of Islamic judges, the authorities have sought to expand Shari’a
study for law students. Reportedly, the Gaza-based Education Ministry granted the
Palestine Polytechnic University a license to award academic degrees in exchange for
an undertaking from the institution to offer Islamic law studies on its curriculum.
In the meantime, the Justice Ministry has taken steps to influence the laws on which
judges rely. In July 2009, the Justice Ministry’s Diwan al-fatwā wa-l-Tashri'
published a legal manual – al murshid al-qanouni lil-tashira al-filastiniya,
encouraging judges to sift out Muslim from non-Muslim laws in their adjudication. It
detailed which legislation applicable in Gaza’s courts had originated under which
authorities, enabling judges to distinguish between Muslim (Ottoman, Egyptian and
PA) legislators, and non-Muslim (British mandate and Israeli military) legislators. In
the words of the manual, it should help the reader judge according to “his religion,
values, customs, traditions and historical heritage, not laws bequeathed by the British
mandate and Israeli settlers”, or in other words Muslim not foreign law.
Foreign law remains valid provided it does not explicitly contradict Islamic Law –
indeed, they note, they have been expressly cited in preambles to legislation passed by
the Gaza parliament.41 But in some quarters foreign law is officially frowned upon. A
newly-appointed judge in Gaza stated that “a judge should not apply a law which
contradicts the Koran”.42 Indicative of the new climate, judges are encouraged to
adjudicate against payment of interest, or riba, which Palestinian legislation sanctions
but Shari’a prescription prohibits.43 Gaza’s courts have dismissed claims by
Palestinian banks for interest payments, and ordered the bank pay the debtor’s costs,
38
Interviews, Supreme Court head Abdel Raouf al-Halabi and lawyer, Gaza City and Deir al-Balah, February
2008.
39
“There are conflicting opinions on women serving as judges. But when we were asked, we replied that
this does not violate Islamic law”, Interview, Marwan Abu Ras, Gaza City, March 2008.
40
“Under the Shari’a judges should be Muslim. Before the takeover there were Christian judges, but
afterwards Christian judges have not requested that they be appointed.” Interview, Ahmed Abu
Halabiyeh, head of Legal Committee, Gaza City, September 2009.
41
For instance in Law 1/2009 amending custody legislation, the preamble cited the Family Law no. 303
of 26/1/1954 applicable in Gaza and Personal Status Law no. 61 of 1976 applicable in the West Bank.
The former was administered by Egypt, the latter by Israel.
42
Interview, judge in the Court of First Instance, Gaza City, September 2009.
43
“We want to ban riba.” Interview, Ahmed Abu Halabiyeh, head of Legal Committee, Gaza City,
September 2009.
on the grounds that interest in the words of one ruling “contravenes the noble Islamic
Shari’a as evidenced in the Book, the Sunna and al-Ijma.” 44 The rulings may also
have a political aim since the Hamas authorities have sought to encourage Gazans to
transfer their accounts from Gaza’s private banks which are regulated by the PA and
charge interest to the National Islamic Bank that Hamas established in March 2009
and does not.45
The executive authorities have reportedly exercised more direct pressure on the
judiciary as well. Hamas-appointed judges reportedly threatened to resign after facing
executive pressure to release suspects with close to ties to the authorities involved in
running a failed pyramid scheme that cost thousands of Gazans their savings.
b. The informal legal sector
Frustrated at the slow pace of change, however, some ideologues have sought to fast-
track the process of Islamisation through the accelerated roll-out of a parallel system
of informal adjudication. In doing so, they built on Gaza’s highly developed informal
arbitration mechanisms, or conciliation committees, which clans, families and faction
have traditionally and customarily used to resolve internal disputes as a means of
bypassing the formal sector. Subsidiary systems during times of strong central
control, the committees served as vital coping mechanisms during times of social
breakdown and judicial dysfunction, most recently during the inter-regnum and
security chaos that prevailed in Gaza prior to Hamas’s full takeover in 2007.
The perpetuation and promotion of a parallel informal system reflects the continuing
tension between Hamas the movement, and Hamas the government. In opposition
under occupation and under the PA, the movement developed informal mechanisms to
influence and control their community outside formal institutions. Even prior to its
formation in the early 1970s, Hamas’s spiritual leader-to-be, Ahmed Yasin, provided
an adjudication service from his Islamic complex, circumventing Israeli occupation
and later PA legal processes. As the movement expanded, so the number of Islamic
Conciliation Committees, or lijan al-islah al-islamiya grew. They operated under the
patronage of Hamas’s own legal arm, the Muslim Scholars League, rabita al-ulamÁ’
al-muslimeen, an assembly of Muslim clerics and legal experts. In addition to
overseeing, its network of conciliation committees, it issued fatwas sanctioning the
movement’s actions and provided general direction.
The breakdown of the formal sector first during that the state of chaos that prevailed
prior to Hamas’s 2007 takeover, and the suspension of the formal judiciary in the
months that followed created a space for the informal sector to fill. As Hamas
44
Judgement in author’s possession. On 5 July 2009 in the Jabalia Arbitration Court, a court which
adjudicates debts of less than 10,000 Jordanian Dinars, Judge Imad al-Nabiya ruled a bank’s claim of
interest on a debt of 10,237 shekels invalid, and ordered the bank pay the debtor’s costs. In his judgement,
the judge determined that the interest payment constituted “al-riba al-fahish”, a term derived from
Ottoman law and applicable in Gaza, which requires that interest payments should not be fahish,
(excessive), assessed at rates of greater than 9 percent. In this judgement, however, payment of interest
appeared to be prohibited altogether. The judgement further offered a well-known Koranic citation from
Surat al-Baqara, 2:278.
45
In the name of opposing interest, Hamas has sought to establish its own Islamic financial services to
counter those which remain under PA regulation in Gaza. It has opened an Islamic bank [which does not
charge direct interest], and an insurance company, Multazim, which abides by Islamic guidelines.
Formally, it has not sought to curb secular financial operations.
consolidated its control, it increasingly acted to ensure that the informal sector
operated within an Islamist framework and under the auspices of Hamas’s not the
PA’s authority. To this end, it promoted the Muslim Scholars League, as the appellate
authority of the informal sector; expanded the network of recognised arbitration
committees under the auspices of the Interior Ministry - not least by stationing them
inside police stations; and established a morality police enforcing sound conduct and
in part operating out of mosques. At times these informal or semi-formal networks of
the movement superseded official juridical institutions. The Hamas movement, for
instance, published administrative notices for weddings, cautioning against mixed
dancing and non-Islamic anthems.46 Gazans seeking work in government departments
or a 10 percent reduction on their utility payments similarly sought a certificate of
approval from the local Hamas mosque.47
i. The Muslim Scholars League
Prior to the takeover, the League served as the primary fatwā authority operating
under Hamas, sanctioning and guiding the movement’s acts. Gaza has no Council of
Legal Experts with a constitutional role as in Iran, but after the takeover, at times it
appears as if the League had acquired a supervisory status. Its head, Marwan Abu
Ras, a parliamentarian widely regarded as the chief mufti of Hamas in Gaza, issued a
license to kill Fatah strongman Samih al-Madhoun, resulting in his lynching. The
League also served as a marja’ia, or reference, for Hamas’s nascent institutions,
including its military courts. And though the head of the Legal Committee says his
fatwās should have no bearing on legal judgements, lawyers say they carry increasing
sway with the law enforcement authorities, and that prosecutors increasingly cite
fatwās in their petitions to the courts.
Further enhancing the quasi-legislative capacity of the movement’s jurists, Gaza’s
sole Hamas-licensed daily newspaper, Felesteen, offers regular coverage of legal
opinions issued by the League’s leading scholars. These include fatwas legitimising
the suppression of Fatah-organised prayer rallies, the raising of taxes on cigarettes, 48
the declaration of President Abbas as an apostate for negotiating with Israel, bans
against mixed dancing and non-Islamic anthems in weddings, the sanction of internet
cafes provided they bar access to banned sites, and more recently a ban on banks
which do not follow Islamic religious law (thus encouraging locals to switch from PA
banks, charging interest, to Hamas’s financial institutions, which do not).
Significantly, they also sanctions the pyramid scheme, noted above, which paid huge
monthly instalments that were tantamount to interest-payments but were ruled by the
League not to be riba.
ii. Conciliation Committees
The origins of the Islah, or conciliation, committees lie in ancient clan and tribal
conflict-resolution mechanisms. These committees survived the establishment of
46
Interview, Amin Nofal, chief military prosecutor, Gaza City, October 2007.
47
Interviews, lawyers, Deir al-Balah, February 2008. The claims were denied by Hamas, Crisis Group
interview, Supreme Court head Abdel Raouf al-Halabi, Gaza City, February 2008.
48
Following its tax hikes in Spring 2010, the Hamas government came under internal and external
Islamist criticism for profiteering from the trade in goods which Hamas itself deems as haram, or
religiously proscribed. The League argued that the 50 per cent tax served as a deterrent to the morally lax.
Interview, Nassim Yasin, League general-secretary, Gaza City, June 2010.
formal legal systems as informal forms of arbitration, maintaining a symbiosis
between state and communal organisations that reflected the ebb-and-flow of state
power. At times of rising state control, they operated as subsidiary process, and were
often commandeered by the ruler as a means of consolidating power; at times of state
collapse they resumed their status as primary and independent conflict-resolution
mechanisms. Palestinian political factions adopted them as a response to occupation,
and a means of self-regulation as an alternative to foreign jurisdiction.49
Overtime, they created a customary law, urf, which the early Islamic order with
varying degrees of success sought to integrate its traditional mechanisms and corpus
into the Islamic legal architecture and promote a slow infusion of Islamisation. As
noted above, Muslim Brotherhood leaders adopted and adapted its mechanisms as a
means of establishing a legal service outside state control. in 1973 Hamas’s founder
Shaikh Ahmad Yasin, opened the Mujamma al-Islamiya centre in Gaza employing urf
institutional structures to adjudicate disputes using fiqh principles. Its key point of
departure from the pre-existing lijan, and its key selling point, was its claim to rectify
the inequalities of clan justice: supporting society’s weak – women and lesser clans –
against families more numerous, influential and powerful.
The mechanism operated as vital substitute to a dysfunctional legal system,
particularly during the Intifada in the late 1980s, and during the falatan al-amni, or
security chaos, that prevailed prior to Hamas’s assumption of power in Gaza.50 At the
time of the takeover, the Muslim Scholars League claimed to be operating eight
conciliation committees operating in Gaza’s major population centres, loosely
applying Shari’a codes. Bereft of a functioning criminal legal system following the
2007 takeover, the League rapidly failed the vacuum, expanding its arbitration
network to 30 within two months. To attract public recourse to its institutions, the
League distributed booklets with the names and mobile phone numbers of its
committee members across the Gaza Strip.51 Some members saw an opening for
discarding the existing corpus of law and its associated institutional framework as a
backdoor to the formal application of the Shari’a.
As it consolidated control however, the government sought to assert its authority over
the informal system. Even under the PA, family reconciliation committees had
functioned under the nominal patronage of the Interior Ministry; PA governors, too,
sometimes functioned as personal arbitrators. For reasons primarily of expediency, the
Hamas security forces heavily promoted the Islah system as a means of increasing
executive control over the legal process, even after the revival of the formal legal
49
The term lajnat islah was coined during the 1987-1993 uprising and adopted by the PA after its
formation as a generic term for the entire informal legal sector, including factional courts and a Sharia court
system run by Hamas, as well as those of the kinship networks. Crisis Group interview, Abu Salman al-
Mughani, head of the Higher Council of Lijan al-Sulh, Gaza, July 2007. Prior to 1987, the kinship dispute
resolution body was commonly referred to as majlis asha’iri (tribal council) or diwan ai’ili (family assembly).
Kinship mediators, however, had long been referred to as rijal al-islah, men of conciliation. Interview, Dara’an
Birjis Wihaidi, Gaza City, July 2007.
50
In 2006 the Committee of National Reconciliation, a PA body, recorded more than 8,556 cases handled by
conciliation committees, ranging from tort and child custody to 50 cases of murder. Even PA enforcement
agencies resorted to its mechanisms. Cases of murder, assault, theft, embezzlement and others left in limbo by
the courts were resolved in the informal sector. “The formal sector is so weak that when a police station is
attacked, the local enforcement agency approaches lajnat al-islah for redress.” Interview, Issam Younis, al-
Mezan Centre for Human Rights, Gaza City, April 2007.
51
Dalil Lijan al-Islah, published by Muslim Scholars League, 2007. Copy in the author’s possession.
sector. Gaza’s Interior Minister Fathi Hamid also highlights the benefits of arbitration
as a more efficient, cheaper, faster and less-adversarial process than the formal
European-based legal system. In an interview, Hammad advocated their jurisdiction
even on murder cases, as a means of settling family grievances in a highly tribalised
society through payment of blood-money. 52 A department operating inside the Interior
Ministry oversees 42 conciliation committees, from Rafah in the south to Beit Hanoun
in the north, employing 250 arbitrators on salaries of 800 shekels a month. Seven
operate from inside the Interior Ministry in Gaza City, sometimes serving as avenues
of appeal or for the arbitration of more serious crimes, such as murder. Others operate
out of police stations. Their locus enables rapid implementation of judgements by the
law-enforcement authorities.
In parallel and sometime above this structure, the movement’s legal system – the
Muslim Scholars’ League – continues to offer its own conciliation service. On 22 July
2007, Islam Shahwan, the spokesman of the Executives Forces, the gendarmerie that
Hamas formed following its election victory, declared the League’s conciliation
committees would replace the district attorney’s office.
The transition was only temporary, but the expansion of the Islah system has enabled
Hamas to promote the Islamisation of judicial mechanisms. The Interior Ministry’s
chief Islah arbitrator, a former head of public relations at the Islamic University, says
his goal is to “organise the arbitration committees in accordance with the new order
and purify their work…. When all people find justice from the arbitrators, the
application of Shara will become a reality”. 53 In other words, he seeks the voluntary
submission to Islamic law and the application of fiqh by default. In their rulings, the
Interior Ministry encourages adjudicators to reconcile customary, or urf, rulings with
traditional Islamic codes, thereby giving the rulings a religious legitimacy which the
formal legal system under occupation lacks.
The system is replete with Islamic terminology. The chief arbitrator refers to his
adjudicators as musalih (arbitrator), faqih (jurisprudent), and more surprisingly,
mujtahid. He has appointed adjudicators, who – he claims – are versed in Islamic law,
and selected Islamic legal specialists – scholars from universities and mosques – to
train them. By appealing to the dual legitimacy of both Islamic and customary codes,
the informal system garners the consensus of Gaza’s powerful clans, while bringing
them under state authority.
Civil society critics argue that Hamas’s support for the system erodes any semblance
of separation between the executive and judicial authorities; undermines the formal
judicial sector; and reflects the Islamist movement’s ongoing unease with secular
legal mechanisms previously operated by the PA. Human rights lawyers further
question the Islah system’s appeal procedures and the adjudicators’ qualifications and
52
“The Islah system stabilises society, and in that way performs the job of the police. Furthermore, it
provides a speedy and effective resolution, easing social pressure. The courts are full of days: it can take
up to a year to prosecute a crime, and during this time, someone can be killed; when your brother has
been murdered, you can’t bear it. We have also tried to make it fairer. In the past, bigger families
dominated the Islah system, but not now. The strong can’t take rights from weak. If the Islah system
continues, ‘we may out of a job.’ And of course, the Islah system enables us, as a government, to respect
and encourage applications of these Islamic codes.” Interview, Fathi Hammad, Gaza City, July 2009.
53
Interview, Interior Ministry official, Gaza City, July 2007.
training. They claim it erodes individual rights, and leads to summary justice and
abuse by those who wield power.
Their concerns of a parallel legal system have had little resonance with Hamas’s
Interior Ministry. Lawyers in Gaza complain that many Interior Ministry conciliation
committees are located inside police stations and that the League’s Islamist clerics
hold considerable sway over their determinations, further undermining the
independence of the judiciary from the executive. And their role within the criminal
legal sector appears to be growing. Although suspects are nominally allowed to
choose under which system they wish to be judged, some speak of intimidation
against renouncing “God’s judgement”. “Hukum Allah au hukum al-Qadi?” God’s
law or the courts, Hamas’s police officers reportedly ask.
In a significant case, the authorities deferred to the ruling of the League’s muftis, even
after the courts had passed judgement on the grounds of legislation introduced by
Hamas. In 2007, after Hamas’s full takeover of Gaza, Feda Dablan, a woman from
Qalqilya in the West Bank arrived in Gaza to reclaim her two children, aged two and
three, from her estranged husband after receiving a court order granting custody. The
father refused to allow access to the children, let alone their transfer to the West Bank.
She filed a complaint with the police, whose initial sympathy turned to indifference
after they discovered her husband had close ties with Hamas, and could produce a
contrary ruling from the League. The judgement reportedly stated that the West Bank
is a separate state with a separate jurisdiction; that since the couple could not travel
they were effectively divorced; and that legislation introduced by Hamas had no
validity in the West Bank. Prevented from seeing her children for three years, the
mother returned to Qalqilya alone.54
iii. Mosque-based morality police.
While the government is not formally committed to applying Islamic law and
maintains its willingness to uphold secular freedoms and dress codes, it has sought
indirectly to adopt and at times enforce Islamist mores. To this end, it has outsourced
enforcement to the Hamas movement’s da‘wa, or Islamic propagation. arm.
Based in mosques and devoted to preaching and social outreach, the da‘wa, forms
the movement’s original core and since the Gaza war has recovered some of its
stature, in part due to the failure of Hamas’s other arms – its military and political
wings – to meet popular needs. In the war’s aftermath, groups of religious volunteers
recruited by the movement’s mosques and known as Jamaat al-Wadiya wa-hassan al-
akhlaq, or advocacy and upright morality groups, became a visible presence on
Gaza’s streets, often operating in tandem with the civil police. To assist the campaign,
the Waqf or religious endowments ministry assigned 50 of its 800 new recruits, to
accompany the morality force. It also instituted a programme for nusuh wal-irshad, or
advising and supervising, and intended to “tawthiq” [intensify] Islamic identity
through social pressure.
Activities include patrolling public places such as beaches and cafes. In the summer
of 2009, they cautioned young men against playing topless on the beach or mingling
54
For documentation and further details see http://fedadblan.jeeran.com/archive/2009/2/813404.html. In
another case, the committee refused a man access to his children, whose wife was sister-in-law of a senior
Qassam Brigade operative.
with girls. Mindful of their presence, some cafes took to attaching signs to their
premises – such as “no mixing and no smoking here”. During the summer of 2009,
their actions reportedly led to the closure of over sixty cafes which had allowed
smoking and the playing of backgammon. 55 In a parallel move, the Interior and
Religious Affairs ministries in June 2009 launched the Fadila campaign – it’s full title
is Naam li Fadila La lil-Radila – a co-ordinated public drive designed as a corrective
for unIslamic activity. From billboards to school walls, it circulated 12,000 posters, to
ward off activity deemed contrary to Islam.56 In the face of pronounced external
criticism, however, Hamas subsequently downsized the campaign. At least part of the
purpose appeared to be to draw some of the flak the Hamas authorities faced from
Salafi groups who complained that Hamas had paid lip-service to Islamic law
application. Since the decline of overt Salafi activism following the August 2009 raid
on the Rafah mosque, the Awqaf Ministry’s public programme of tawthiq has also
taken more of a back-seat.
F. Conclusion
Historically, Hamas has rarely articulated the goal of application of the Shari’a in
Gaza. However, its absolute control over Gaza, and its inability to implement the
broader goals of the movement elsewhere have focussed the movement’s energies on
Gaza. Pressure from Salafi groups with influence inside Hamas has further prompted
the movement to intensify its Islamisation of Palestinian society through both formal
and informal mechanisms.
Nevertheless, despite some moves towards shifting cultural norms in Gaza, Hamas
continues to operate a formal system in Gaza which uses the physical and legal
infrastructure of the pre-existing PA system. The efforts of ideologues are
predominantly channelled into the informal sector, which enjoys official support but
has not supplanted the formal judiciary. That symbiotic relationship is not guaranteed.
In trying to juggle the competing interests of the general population and the
movement’s rank-and-file and channel them into the pre-existing two tier system of
informal and formal judicial sectors, the authorities risk widening the rift between the
two systems to a degree which could prove destabilising. The uneasy dichotomy that
exists between the formal and informal in Gaza’s other sectors – in the economy
(between the competing interests of the tunnel-traffickers and formal merchants) and
the security forces (between police units and Qassam brigades) also exists in the legal
sector. It is intrinsic to an Islamist movement which has yet to resolve its competing
and contrary roles of opposition movement and governing authority.
Hamas officials advocating a gradual process of Shari’a application argue that Shari’a
will become only fully applicable once economic and political circumstances
improve. This author argues the reverse. Most moves towards Islamisation have come
at a time when the Hamas authorities faced greatest internal or external pressure – for
instance in the immediate aftermath of the Gaza war, or at the height of Salafi dissent
in the summer of 2009. Constraints on Hamas’s room for manoeuvre externally have
55
Lawyers say the authorities carried out the closure under Israeli military law 143, which empowers the
military commander to close institutions conducting unlawful activity.
56
The posters castigated pornography, with a scene of a young man masturbating in front of a computer
screen. Smoking and dressing in revealing attire were also condemned. (One poster captioned “Satanic
Industry” portrayed a girl with a headscarf who also sported trousers and a pullover outlining the shape of
her breasts. Beneath them was a picture of a devil bearing a trident.
further concentrated its energies on its greater room for manoeuvre internally.
Severely restricted in its ability to deliver on physical reconstruction and recovery, the
movement has focussed more on the one area open to it – religious reconstruction. At
the same time, the withdrawal of external powers has given Islamist groups a freer
hand to effect change in Gaza.
An end to western, Palestinian and Israeli isolation of Gaza and an improvement in
Gaza’s lot generally, is likely to empower groups with external connections, and
impede rather than accelerate Gaza’s Islamisation. By contrast, the alternative – of
maintaining the closure - is likely to hasten the application of Sharia norms.
