In the past years, the share of countries participating in any type of conflict has risen to be the highest since 1946 (PRIO, 2014). The world has witnessed some of the highest rates of intrastate conflicts since the end of World War II, while the same conflicts seem to have claimed the highest share of total battle deaths. While general trends in world governance seem to favor democracy over other forms of more autocratic governance, in the Middle East autocracy seems to be on the rise, especially after events related to the Arab Uprisings. The rate of arms’ sales slightly lowered since 2010, remaining though at an all-time high (except for the Cold War period) of $ 400 Bn per year (SIPRI, 2013). Between 2009 and 2013, 11 of the 20 top defense importers in the world were Muslim majority countries (SIPRI, 2013), reflecting the presence of intrastate conflict and insecurity in the region.
The rise in interstate and intrastate conflicts is leading to further global instability and grievance, mass migration, and increased levels of social discrimination and segregation. Given these statistics, it is important to consider what conflict resolution methods can be employed in specific contexts. Mediation has gained popularity and has been increasingly used both locally and internationally, but Islamic conflict resolution practices and their application are rarely acknowledged, let alone leveraged.
Peace, Justice, and Power in Islam
Salam. “Peace be upon you” is a traditional Arabic greeting. Since the 9/11 attacks on the World Trade Center in New York City and the rise of the Islamic State of Iraq and al-Sham (ISIS), few people in the world associate Islam with peace. Most of the Western world, including a number of analysts, academia and the media, look at Muslims with a mix of concern and contempt, and relate Islam to terrorism, violence and backwardness. In the Islamic tradition though, peace is a core principle and an ideal to aspire to while pursuing a just society.
Kalin (2010) conceptualizes the concept of peace, al-salam, in Islam in four different ways:
Kadayifci- Orellana (2010, pp.21-25) summarized the Islamic concept of peace in 5 elements, “Tawhid (unity of all humankind); fitrah (upholding peace as a duty for every Muslim); al-adl, justice, which is the backbone of peace because without justice there can be no peace; afu, forgiveness [….]; rahma, compassion and rahim, mercy”. These elements resonate with the concept of positive peace and of ‘just peace’ as methods to “reduce violence and destructive cycles of social interactivity and at the same time increase justice in any human relationship” (Lederach, 2005, p.182). Zulum, justice, is used 114 times in the Qur’an and, although its elements are never clearly enunciated, there are at least 3 domains in which this concept is used: reciprocity of relationships among men and with God, a process by which equality is achieved among diverse elements, and the variety of contexts and circumstances though which justice can be enacted and displayed, rather than clearly defined (Rosen, 2000). The just person is adl meaning “to set straight”, “to be balanced” because he/she keeps his/her human relationships in balance and engages with others at many levels on the basis of reciprocity. The concept of haqq, meaning “right” or “duty”, but also “reality” and “truth”, refers to the variety of obligations regulating human existence and determining a person’s place in society and their authority (Rosen, 2000, p.156). “[….] justice, or ‘giving what is due’ and ‘establishing the truth’.… Consequently, justice is deviated from when the exactness of ‘preserving the middle’ is lost, through a twist this way or that… [The] maxim, usually attributed to Muhammad, was a commonplace among medieval intellectuals: ‘the middle of things is the best’. It is the middle in which the two, separated from each other [….] merge and come to harmony, producing a unity that makes genuine sense” (Smirnov, 1996, p.345–6). Thus, reciprocity creates dependency in the community and holds individuals closely knit, while the state, not possessing justice in itself, is tasked with regulating reciprocity and creating human networks according to what was divinely ordained. Medieval Islamic scholars in fact, thought rulers and administration couldn’t be just because of their position of pre-eminence that did not allow them to reciprocate while retaining power over others. Corruption then isn’t about using human networks to advance oneself and family, but rather retaining wealth and advantage for oneself instead of sharing it with the broader network one is connected to (Rosen, 2000).
One of the interpretations of jihad is of a struggle against injustice and structural violence (Yassine-Hamdan, Pearson, 2014). In the Arab world, we find a number of examples of structural violence in political regimes. Power succession is one of the most debated processes since the beginning of Islam, when, after the death of the Prophet, the early Muslim community divided into Shia and Sunni over the issue of Muhammed successor. There is agreement on viewing the Islamic leader is a ‘protector’ and ‘custodian’ of faith and an executor of Islamic law (Khuri, 1997,p.127). The choice of a leader should happen through consultation and a pledge of obedience, but there is no official process. Religion and its manipulation are commonly used to justify the rise to power of leaders, while some see the overpowering of opponents as a legitimate way of gaining primacy. “Power is not the privilege of an office; it is rather a social asset, an attribute of a general standing in society” (Khuri, 1997, p.128). Western ideas of state and sovereignty were superimposed on these concepts. Post-colonial state borders left Arab leaders and communities with the task to democratically rule themselves without the centuries of adjustments and violence that the West underwent before submitting itself to these same concepts. For this reason, Pan-Arab and Pan-Islamic ideologies emerged to contrast the Western concept of boundaries, while tribal ties justified interstate meddling (Gause, 1997). Many regimes, that were imposed or that took over power, tried to adopt some democratic elements to legitimize their presence. They did so by manipulating narratives and succeeded because of mostly condescending and closely knit societies, which, on the basis of the Islamic concepts of unity and consensus in the umma, community, (Khuri, 1997, p.136) and the concept of asabiyya, ethnic or religious group bond (Ibn Khaldun, cited by Yassine-Hamdan, Pearson, 2014, p.28), did not oppose regimes and ideologies until very recently in the Arab Uprisings. Up until then, the “public” as a source of legitimacy in democracy, hadn’t emerged yet as a political force (Khuri, 1997, p.137). Interestingly enough the first fora for discussion were mosques and religious gatherings. Religion, as a common unifying value framework across geographical divides, represented a tool and a means to voice dissent towards repressive political regimes. As in the case of Iran, religion carried the banner of the revolution, while groups like Hezbollah, Hamas and the Muslim brotherhood strengthened their social and political stance by providing the community with services neglected by the state (Yassine-Hamdan, Pearson, 2014).
Over time, a number of practices for the resolution of conflict have emerged and can be grouped under: tribal laws, Islamic law, and traditional practices influenced by the Sharia (Abu-Nimer, 2003). These often overlap and are used interchangeably. Third party intervention seems to be a constant feature in most processes and these share similar underlying assumptions (Abu-Nimer, 2003): conflict is something negative that breaks harmony and should be avoided; the objective of the third party is to restore order and harmony rather than change power relationships; conflict resolution is a community priority that involves elders, local leaders and family members who put pressure on the parties and guarantee the implementation of the agreement; the process is guided by established norms that include honor restoration, face saving, avoiding shame, saving dignity; relationships are key and their restoration is paramount; the third party keeps litigants separate while being their only channel of communication and reconciles them only when an agreement has been successfully negotiated. Conflict resolution practices in the Arab world aim at reestablishing individual and communal harmony through the authority of the third party (mediator, arbitrator) rather than offer an opportunity for disputing parties to openly express their grievances. The third party role tends to be occupied by community leaders, mostly elders, whose standing in society demands respect from the parties and can pressure them to reach an agreement. Thus, power imbalances are a key factor in these processes that can be used as a mechanism to control society, rather than change it (Abu-Nimer, 2003).
Most approaches to conflict resolution in the MENA Region have their roots in Islam and religious scriptures (Munene, 1997, cited by Yassine-Hamdan, Pearson, 2014). Practices that are mentioned in the Qur’an and commonly acknowledged are:
Suhl is mentioned in the following verses of the Qur’an (cited by Keshavjee, 2013, p.66):
There are different types of suhl, but all of them are meant to protect social ties on the basis of social codes that pressure all individuals to come to an agreement. Social codes include age hierarchies (the young submits to the old), familial hierarchies (the son submits to the father), gender hierarchies (women submit to men), and constrain parties in a weaker position to submit to what is considered right by the elders and the community. Suhl doesn’t really give space to individual rights and personal grievances, but rather silences demands into customary communication patters and is intended to strengthen and maintain social equilibrium. As mediation gains its space in the context of ADR practices, suhl can pave the way as a similar practice, but given its constraining aspects, it can also generate the wrong expectations of mediation as a coercive process (Hafdane, 2013).
The Qur’an and the Sharia refer to essoulh/islah, conciliation, and to takhim, arbitration a number of times, and these practices have been varyingly included in legal codes of countries across the MENA. Wassata, mediation, was only recently introduced in legal codes and in Morocco by law N. 08.05 on Arbitration and Conventional Mediation (Hafdane, 2013). Wasta, “vertical mediation” refers “to the deals brokered between villagers and state authorities […and more generally to…] reciprocal assistance” (Lang, 2005, p.177), while sulha, “horizontal mediation”, can be considered a “more specialized form of wasta” (Lang, 2005, p.177) in which there is an attempt to create equality among the actors in the process (parties, negotiators and public). Wasta can also refer to “intercessory wasta involves more a businesslike transaction as with ‘a middle man’ or broker who intercedes on behalf of a client/customer to provide a job, university admission, […..]” (Yassine-Hamdan, Pearson, 2014, p.6). Originally a form of networking, nowadays intercessory wasta is considered the key issue leading to unfair and non-meritocratic government systems, favoring some individuals with the right connections instead of others (Cunningham, Sarayrah, 1994).
Courts, conciliation/mediation and arbitration are the most common conflict resolution options available in the MENA. The boundaries between conciliation/mediation and arbitration are often blurry, but many countries whose legal codes have been influenced by French law (Syria, Egypt, Kuwait, Lebanon, Morocco) include some form of mediation practice in their legislation (Saleh, 1986). The pressure to adopt Western legal models to have developing countries successfully enter the global marketplace has brought to many Arab countries not only European legal codes, but also ADR. Given the assumption that local conflict resolution methods are based on harmony, consensus and informality, ADR was introduced as the best way to advocate for ‘light’ judicial reform while attracting foreign investors (Greco, 2010). On this basis, a number of countries have passed laws that integrate Western-styled mediation in their legal system. In 2006, Jordan adopted the Law on Mediation for the Resolution of Civil Disputes that offers parties the opportunity to mediate for cases in first degree adjudication. Similarly, in Dubai (UAE) Law No. 16 of 2009, allowed the opening of a Mediation Centre supplementing the courts (Khasawneh, Sfeir, 2011).
Case study: Morocco
Morocco is a country of almost 33 million people, 60% of which are between 15 and 54 (CIA, 2015). According to the World Bank (2015), it is considered a lower middle-income economy with a GNI between $1,046 and $4,125. 32% of the total population are illiterate (UNESCO, 2011), 9.9% of the population is unemployed (Bank Al Maghrib, 2014, cited by Morocco World News, 2015) and 14.4% live under poverty line (World Bank, 2015). Freed from the French protectorate in 1956, Morocco became a constitutional monarchy under King Mohammed V (Howe, 2005). The Kingdom’s dynasty, the Alaouites, dates back to the Prophet. Morocco’s indigenous people are the Imazighen, free people, or Berbers, as the Romans called them, who inhabited most of North Africa before the advent of Arabs and Islam around 700 AC. It is unclear why these populations that for centuries remained impermeable to other conquerors, embraced Islam, but it is hypothesized that the Arab’s religious and military fervor succeeded in imposing their culture which ultimately, “assumed Berber characteristics – egalitarianism, austerity and a certain mysticism – and soon declared its independence from Oriental Islam” (Howe, 2005, p.59). Great Muslim dynasties succeeded themselves – Almoravids, Almohads, Merinids, Saadians, Alaouites- until European powers- France, Spain, Germany and England – tried to turn Morocco into a protectorate. France and Spain succeeded in this endeavor until, thanks to the relentless efforts of King Muhammed V and the nationalist Istiqlal party, Moroccan independence was achieved in 1956. Under King Hassan II, the first Moroccan constitution was drafted and ratified in 1962. In it, Morocco was described as a “constitutional, democratic and social monarchy” of hereditary nature that was not constitutionally changeable (Article 108) (Zemrani, Lynch, 2013,p.5). The King became the Commander of the Faithful “guarantor of the continuity of the state”, “protector of the rights and liberties of citizens, social groups and collectivities” (Howe, 2005, p.225), and “his person considered as sacred and unchallengeable (Article 23)” (Zemrani, Lynch, 2013, p.5). The King’s characteristics reflect the Islamic idea of the leader as a “protector” and “custodian” (Khuri, 1997, p.127). It also suggests an idea of unity under the rule of a King of all believers, not only Muslims (although non-Muslims account for only 1.3% of Moroccan population) (US Embassy in Morocco, 1999). Given the royal family’s descent from the Prophet and the pivotal role played by King Mohammed V to achieve independence, the Alaouites have become Morocco’s symbol of unity and strength. This attitude also reflects a tendency towards “personality cult” (Slim, 1993, cited by Yassine-Hamdan, Pearson, 2014, p.9) and the acceptance of power disparity on the basis of “legitimizing myths” that may justify inequality (Sidanius, Pratto, 1999, cited by Coleman, 2006, p.131). Criticizing the King can result in legal persecution and is considered socially unacceptable (Brouer, Bartels, 2014). Moreover, the monarchy is economically very powerful, currently owning 30% of Moroccan economy (Balleria 2011, Benchemsi 2012, cited by Brouer, Bartels, 2014).
Following the 2011 Arab Awakening events in Tunisia and Egypt, current King Mohammed VI, instated in 1999, faced a wave of protests initiated by the 20th of February movement, a group of young Islamist and leftist activists. They demanded the creation of a parliamentary monarchy, more representative democracy, and persecution of corrupted officials and business leaders. The King soon announced the creation of a commission that would suggest constitutional revisions. The movement’s leaders were invited to participate, but rejected the invitation. The reforms that passed by popular vote in 2011 included (Karam, 2011):
The activists weren’t satisfied, holding that, “the constitutional reform does not respond to the essence of our demands which is establishing a parliamentary monarchy. We are basically moving from a de facto absolute monarchy to a constitutional monarchy” (Chawki, cited by Karam, 2011, no page). Also internationally many considered these changes to be merely cosmetic and a year later, in 2012, the Minister of Justice admitted to many irregularities and abuses in the treatment and detention of protesters from the 20th of February movement (Rachidi, 2012).
Traditional conflict resolution methods have been in use in Morocco since the existence of Berber tribes in the Atlas Mountains. Originally conflicts were solved by the hereditary ‘saints’ of the region who lived in isolation from the tribes, but served a number of purposes among which the one of ‘mediators’ (Gellner, 1969). The makhzen, pre-colonial royal establishment (Howe, 2005), used mediation as a way to control the tribes, especially in the Southern part of the country. While some describe the makhzen as a system of perpetual violence (Waterbury, 1970), other authors (Ayache, 1979) believe that the makhzen served important functions among which one of ‘mediator’ among different Berber tribes to guarantee peace and unity in the kingdom. With the French Protectorate, the French Civil Code was adopted and a more extensive control over territory was enforced. Traditional methods of conflict resolution have survived in the practices of tribal leaders, arbitrators and imams, who continue implementing some traditional forms of reconciliation (USAID, 2010).
Albeit the recently introduced constitutional reforms, the Ministry of Justice is not independent from the monarchy (Bertelsmann Stiftung, 2014) and corruption seems to be common at all levels of the state (USAID, 2010). According to Transparency International, Morocco rates 39/100 on the perception of corruption, defined as the “the abuse of entrusted power for private gain” (Transparency International, 2014, no page) in the public sector on a scale of 0 (highly corrupt) to 100 (very clean) (Transparency International, 2014).
In 2007, the adoption of Law 05.08 on Arbitration and Conventional Mediation (Ministere de La Justice et des Libertes, 2007) introduced a more Western form of ADR in Morocco. Aside from the Moroccan justice system’s issues (corruption, lack of independence from the monarch, etc.), there are also issues of access, case backlog, and limited training and capacity. People are not adequately informed about laws and legal decisions, judgements are published ad hoc, and no law journals or bar association publications are provided. Access is also limited by income as pro bono legal services are scarce and below demand, and mostly located in urban areas (USAID, 2010). Women, whose condition in Morocco has been partially improved by the Moudawana, the 2004 reformed family code, also face numerous social, financial and cultural boundaries to justice due to the limited training of judges on the new family code and its limited application because of many judges’ contrary ideology (USAID, 2010). In terms of backlog, it appears that “in 2007 a total of 2.57 million cases were filed and 3.25 million cases were ongoing” (Ministere de La Justice et des Libertes, 2008, cited by USAID, 2010, pp. 17).
Thanks to the work of a number of Moroccan political parties and civil society organizations, mediation was reintroduced with Law n.08-05 on the 24th of July, 2007, with Parliament’s unanimous vote (USAID, 2010). Together with arbitration, mediation effectively became part of Chapter VIII of the 5th Title of the Code of Civil Procedures, Articles 306-327.70. Although no court mandated mediation is yet contemplated, ‘conventional mediation’ is described in detail and reflects the description of mediation as conceptualized in some key Western documents (New York State ADR Office, 2008; European Commission, 2004; United Nations, 2012). The law mentions in fact impartiality, confidentiality, and the mediator’s ability to listen, clarify communication, and act as a ‘catalyzer’ of the parties’ emotions, encouraging them to identify and discuss the real causes of conflict (Ministere de La Justice et des Libertes, 2007). These characteristics also reflect the more ‘facilitative’ nature of mediation as described in the code. Given the time and delays hampering legal reform, ADR is a way to guarantee access to justice, attract foreign capital and possibly avoid critiques of neocolonialism, as legal transplants often do (Nader, 1999, cited by Greco, 2010). Critiques believe that ADR can also be a mechanism of “pacification and control” (Greco, 2010, p.658) and may allow for private settlements outside of the court system that favor stronger parties, trying to avoid the unpredictable results of a legal system in need of deeper reform (Burton, Dukes, 1990).
Although parties in positions of power and pre-eminence have less interest in participating to mediation (Kressel, 2006), the Moroccan monarchy has both tried to engage the opposition in dialogue around constitutional reform and has approved the introduction of mediation as a means to resolve conflict. Mediation might not be the means of dialogue among parties in vertical relationships, with a relevant power differential, but it has improved relationships, horizontally, among members of Moroccan society. Mediation projects implemented by some relevant NGOs in the country, have empowered both participants and their communities by offering more opportunities for redress and have eased the backlog of cases in court. Furthermore, they provided communities with skills useful in fostering stronger connections and engagement and better intergenerational communications. These two factors alone, better community and intergenerational integration, are key in avoiding radicalization (Abbas, 2011) in a way that is socially constructive and restores social harmony and linkages, as advocated by the Islamic tradition. This is also perfectly in line with the idea that “a principal goal of mediation could be to give the participants an opportunity to learn or to change. This could take the form of moral growth or a ‘transformation’, as understood by Bush and Folger to include ‘empowerment’ (a sense of “their own capacity to handle life’s problems”) and ‘recognition’ (acknowledging or empathizing with others’ situations)” (Riskin,1996, p.20). Ultimately, if compared to evaluative mediation, “empowerment mediation” and “community model mediation” are basically “pure form mediation” (Galton, 1994, cited by Riskin, 1996, p.15).
The institutionalization of mediation with Law n. 08.05 on Arbitration and Conventional Mediation is only the first step as many Moroccans are unaware of the process and the opportunities it can offer. When marketing mediation, it will be important to highlight its commonalities with traditional methods of conflict resolution, while clarifying that the mediation will be conducted according to principles of self-determination, confidentiality and impartiality to guarantee a process that serves the interests of the parties as they see them rather than as seen by the mediator. As the practice gains popularity, relevant stakeholders will have to ensure mediation doesn’t become a way for some individuals to exercise power on others by becoming mediators or to ‘escape’ justice by using this alternative to the court system. Furthermore, there is a risk of using and fostering ADR, mediation in particular, as a way to deflect attention from broader, deeper social reforms which remain indispensable.
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