A true story: Criminal Appeal 206/54 – Attorney General v. Mohammad A’tamneh
In a turbulent case from the early 1950s, regarded as the formative decade for Israeli society, alternative judicial mechanisms came to the fore. In the ruling on Criminal Appeal 206/54 – Attorney General v. Mohammad A’tamneh, the Supreme Court was concerned with the task of “restoring peace” to a traditional Eastern community.[1]
Mohammad A’tamneh, along with two other men, was convicted of manslaughter by the Haifa District Court for the killing of a fellow passenger on a bus. During the journey, A’tamneh and his friends killed the other man in what the Supreme Court later described as a “meaningless fight” over a bus seat. The families of the perpetrators and of the victims then conducted a Sulha, which is a traditional, informal conflict resolution practice used primarily in Arab communities in the Middle East, the term coming from the Arabic word “ṣulḥa” which means reconciliation or settlement. The families of both the perpetrators and the victim then together submitted a request that the Haifa District Court take this reconciliation into consideration in handing down its ruling, urging that it make the punishment lenient. In response, the Court did indeed choose a lenient punishment: 18 months’ imprisonment for each of the three defendants involved. However, the Attorney General then appealed against this punishment in the Supreme Court, arguing that it did not suit the crime.
In his verdict, Chief Justice Yitzhak Olshan describes the murder in a single sentence.
However, he bases his conclusions on what transpired after the murder. What seems to be most important, according to the final verdict of the Supreme Court, is that “peace was made” between the victim’s and the offenders’ families in the remote Arab village outside of Haifa, where they lived. The atonement and the absolution were so sincere that the representatives of the victim’s family came all the way to the Supreme Court in Jerusalem to ask that the sentence be mitigated, and Chief Justice Olshan self-reflectively pondered whether the Court should take the request into account.
Interestingly, the Supreme Court’s misgivings were few. In a text less than two pages long, the Chief Justice determined that there was no doubt concerning the significance of restoring the peace, “especially among villagers,” and that this tendency—to absolve an aggressor from within the community—was quite common in “this land”: “Once such a thing has come to happen, it is better to encourage it.”[2] According to Olshan, the honorable judge at the Haifa District Court “had detailed all the circumstances taken under consideration” and it was possible that in this case these considerations may have conclusively supported the mitigation of the sentence. Notably, “this court [the Supreme Court] cannot rule that these [considerations] were wrong.”[3] The district court, he explains, could have decided on a different, more severe punishment, given the circumstances; however, “we believe at this time there is no need for us to intervene and overturn the ruling.” Supreme Court Justice David Goitein concurred insofar as he objected to changing the penalty, but not before advising the Attorney General, somewhat patronizingly, to turn “the district courts’ attention to the fact that in these cases, even if peace has been restored, [the courts] should take into account the severity of the crime and think before handing down too light a sentence.” Justice Zvi Berenzon suffices with only a few perfunctory sentences, mentioning laconically that he hopes that “this [ruling] will not be interpreted by district courts as indication that it would be right to punish so severe a crime in such a light manner,” since the “court is obligated to help secure human lives”:
“Indeed, making peace in the village supports that direction, when it puts an end to family disputes that could have cost lives; yet, in the meantime, one must remember the fact that the offenders took another man’s life, with no justification, and so brutally.”
Sulha: A space where East meets West
Different legal systems—both Middle Eastern and, due to migration processes and multicultural dynamics, also Western—have dealt with the role of Sulha, a persistent traditional Shari’a-based, socio-legal process of conflict resolution. Sulha, which works independently of formal legal systems, aims to restore peace within local Arab communities and to break cycles of revenge and violence. Even today, from both Israeli media reports and numerous Israeli court rulings that directly or indirectly discuss Sulha, it is evident that the traditional and institutional practice is gaining traction across significant sections of the Palestinian public: Muslims, Christians, and Druze.
Although Sulha works independently of the formal legal system, as was just mentioned, this institution is not necessarily separate from the formal legal system. Numerous scholars have explored Sulha as a process that effects a gradual attitudinal transformation, from a desire for revenge to a willingness to forgive (see, for instance, Pely and Shahar). In my study, a work in progress, I investigate the theoretical, normative, and practical challenges this mechanism poses and analyze its coexistence with Israel’s legal system across different decades and socio-political periods. Based upon comparative analysis, the study discusses Sulha as a cultural meeting point that has persisted from the period of the British Mandate to the present day and ponders whether we can interpret it as an expression of legal pluralism.
As a legal historian, I find the formal, informal, institutional, and almost stubborn survival of Sulha to be quite fascinating. It has not only endured the powerful Ottoman and British empires, but has also reached a certain coexistence with the complex Israeli law, particularly as the national tension between Jewish and Arab populations persists; although the state penal code, which has been made stricter over time, never mentions Sulha explicitly, Sulha has prevailed over time. Despite the plethora of state-instituted alternative dispute-resolution (ADR) frameworks outside the court,[4] Sulha has remained rather popular. As my empirical study shows, and as is reflected in many court rulings, Sulha continues to be prevalent and influential among the Palestinian public in Israel, where, since 1948, a Western liberal legal culture has faced perhaps not a rival but a partnering socio-legal institution. This public, at least in part, engages in various types of Sulha mechanisms in social, family, commercial, and civilian controversies (violent and non-violent as well), and the role of Sulha is then reflected in the conduct of state authorities, such as the police and judicial system.
In conducting this research, I am particularly interested in how this type of East-West interplay, as I frame it, is received by and impacts the court.
The approach to studying Sulha and a preliminary result
In terms of methodology, one can study the Sulha, as I do, as both a socio-legal phenomenon and a procedural mechanism. Unlike most other scholars, I am not only interested in the classic conflicts that Sulha addresses, such as blood feuds, but also in reconciliations in various non-penal contexts, including domestic (marriage/family), economic, commercial, neighborly, and inter-denominational disputes. While previous studies have focused on customary law, especially among the Bedouin, and on the operation of the mechanism within the context of the Israeli-Palestinian conflict, this study situates Sulha within a broader context of legal pluralism in Israel.
As the research unfolds, I am intrigued by the complexity of both my findings and their theoretical implications. So far, my archival work covers dozens of verdicts and legal decisions in criminal, family, contract, and civil law. I try to capture as broad and complex an understanding of Sulha as a mechanism in law as possible, given the intended research goals. To this end, the study examines the role of Sulha in court decisions, as well as in procedural processes such as alternative to detention (ATD), extending detention, and certain sentencing considerations.
In analyzing these legal texts, I have sought to identify particular patterns and tendencies. Were the court and the parties involved discussing legal pluralism, cultural-defense arguments, or multiculturalism? As a legal historian, I am cautious to avoid anachronisms, specifically the use of more recent theoretical concepts to understand the discourse of earlier periods. Although the primary sources I have tracked and compared often seem to echo some of cultural-defense theories that were developed decades later (such as “restoring peace”), it is important to avoid imposing contemporary theoretical frameworks on the discourse of the court or the parties involved in the legal processes of the 1950s or 1970s.
As dozens of individuals have negotiated and pleaded their views in different cases, it seems to me that a basic, fundamental dilemma persists—namely, the need to balance the core principles of criminal law with alternative socio-cultural dispute-resolution mechanisms. Although several works have pointed at the uniqueness of Sulha as a multicultural mechanism (Shapira), my archival research shows how early Israeli law, and the decisions of the Supreme Court in particular, grappled with similar inter-cultural tensions and contradictions. Thus, the A’tamneh case serves as an instance in which Sulha was taken into consideration and integrated into a court decision, thereby shaping conventional legal wisdom, by the 1950s, by which time various disputes had arisen, many of which were violent and sometimes fatal. In many cases, a common theme emerges: the Court often navigates between conflicting theoretical-normative objectives — retribution and deterrence on one hand, and what the Court described as “peace restoring” (sometimes specifically “peace restoring in the village”) on the other hand. In practice, defendants, along with “distinguished” representatives from their (typically peripheral) community or family members, including those speaking on behalf of the victim’s family, would approach the Court and request that the fact that they had reached a Sulha be considered.
Between legal pluralism, legal history and law
I have found the concept of “legal pluralism” helpful in discerning the phenomenon I see in Israel. This phenomenon, simply put, is that alongside the state justice system, communal, religious, ethnic, or cultural mechanisms operate to resolve conflicts. One can find alternative non-official forums and non-state semi-legal forums that discuss certain sex crimes in Orthodox or Conservative Jewish communities, as they sometimes compete with the penal system, for example. The institution of Sulha is another such explicit example: the pluralistic legal reality is characterized by the inter-legality and hybridization of different normative systems. Each of these systems operates within its own domain and utilizes its distinct mechanisms for conflict resolution, punishment, retribution, compensation, and deterrence.
The multiple cases in which Sulha has been discussed by the Court during the second half of the 20th and earlier 21st centuries bring to mind core principles of the rich literature on legal pluralism (see, for example, Merry). The phenomenon challenges a modern understanding of law that views the evolution of the state as a process during which normative sources are centralized and coordinated by the state. The rise of postmodernism inspired much interest in a competing understanding of law: normative pluralism, which recognizes more than one ultimate principle or law. The postmodern world differs from the modern world insofar as it is characterized by a pluralism of parallel realities and normative sources that do not necessarily co-exist. This notion also applies in law.
However, in the context of legal pluralism in Israel, the consideration of Sulha in the formal legal system is unique in two ways. First, other instances of legal pluralism withdraw from classic monist-centralist legal structures, where the state exclusively operates and exercises its power. In contrast, the “Sulha cases” show that Sulha advocates want the practice to be recognized by the Court. Second, it is important to acknowledge that in a significant number of cases, the Arab-Palestinian national collective includes members whose shared narrative stands in conflict with the state’s Zionist narrative. In some of the cases uncovered in my archival research, most of the rural Arab-Palestinian communities (primarily from the Galilee, the Triangle, and the Negev) that took Sulha to the Court were still under the jurisdiction of the Martial Law—the Israeli military-administrative government that governed the Arab populations of these geographical areas from 1949 to 1966—adding another layer to the complex legal history of this issue. As a result, this particular call for recognition — especially within the criminal justice system — and inclusion casts new light on the complexity of the Israeli-Palestinian dynamic.
[1] Criminal Appeal 206/54 Attorney General v. Mohammad A’tamneh.
[2] CA A’tamneh, at 1503 (emphasis added).
[3] Ibid.
[4] There are also other mechanisms of dispute resolution, besides ADR; yet, in recent years, alternative dispute-resolution options have been flourishing. See Omer Shapira, Israeli Perspectives on Alternative Dispute Resolution and Justice, 19 Pepperdine Dispute Resolution Law Journal 273 (2019).
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