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Addressing Violence Against Women Through Legislative Reform in States Transitioning from the Arab Spring
Abstract
The adoption of gender-sensitive legislation during times of social and political transition not only increases the protection of women, but also promotes and institutionalizes gender justice. There have been calls for gendering transitional justice mechanisms in the post-Arab Spring in order to address previous regimes’ violations of women’s rights and society’s overall tolerance for gender-based violence. This chapter will present a desk review of gender sensitive and violence against women legal reform resulting from transitional processes of states emerging from the Arab Spring, examining actions taken in Egypt, Libya, Morocco, Tunisia, and Yemen. While violence against women legal reform has been uneven, the case studies reveal that, women’s organizations and movements (particularly feminist or feminist-oriented) are key to ensuring that violence against women legal reform is a component of any transitional process; however, their intervention alone does not ensure serious consideration of violence or legal transformation. While this finding is in line with other research concerning autonomous women’s movements and the governmental response to violence against women, the case studies also reveal that more holistic interventions are needed for violence against women to be sufficiently addressed in transitioning societies; this includes dedicated political will, a more thorough transitional justice process, and strong commitment to international frameworks.
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The article discusses the gendered implications of recent political developments in the region. It argues that women and gender are key to both revolutionary and counter-revolutionary processes and developments and not marginal to them. It explores the significance of women’s involvement, the historical context of women’s political participation and marginalization in political transition. Theoretically, developments in the region point to the centrality of women and gender when it comes to constructing and controlling communities, be they ethnic, religious or political; the significance of the state in reproducing, maintaining and challenging prevailing gender regimes, ideologies, discourses and relations; the instrumentalization of women’s bodies and sexualities in regulating and controlling citizens and members of communities; the prevalence of gender-based violence; the historically and cross-culturally predominant construction of women as second-class citizens; the relationship between militarization and a militarized masculinity that privileges authoritarianism, social hierarchies and tries to marginalize and control not only women but also non-normative men.
In the recent and ongoing Libyan armed conflicts, as well as in most internal and international wars, civilians, particularly women and children, have formed the primary target for all forms of sexual violence — best expressed as conflict-related gender-based crimes. These crimes have been systematically conducted on a large scale against both Libyan women and men as a weapon of war with the intention of damaging the fabric of Libyan society, driving a wedge between families and tribes, and undermining Libyan social and community cohesion.
Addressing wartime rape and other forms of sexual violence at the outset of any Libyan truth and reconciliation campaign would help ensure a durable peace, amnesty, transparency, and accountability among Libyan communities and tribes. Failure on the part of the Libyan government and the General National Congress to restore justice and build peace may well trigger cycles of revenge and place the whole country on the horns of a dilemma.
However, in the aftermath of internal conflict and civil war, which usually result in mass violence and gross human rights violations, transitional justice must be an essential element and an integral component of any political or legal process that aims at achieving conflict resolution and peace-building. To ensure accountability, establish equity, make justice, and achieve reconciliation, Libyan transitional justice should involve a full range of socio-legal mechanisms that would help the Libyan people to deal with widespread or systematic human rights violations, particularly conflict-related gender-based crimes committed by all parties to the conflict. Ultimately, transitional justice has to be constituted of different measures and processes, including criminal justice, truth-seeking and reconciliation commissions, reparations to victims, and institutional reforms.
This article argues that the incompetence of the current Libyan transitional justice system, manifested in its failure to respond adequately to conflict-related gender-based crimes, impedes access to justice for victims, encourages the culture of impunity, and leaves Libyans’ peace-building process open to the danger of collapse. Accordingly, this analysis deals with gender-based crimes in a war setting as a case study and with transitional justice as a combination of a variety of socio-legal approaches to provide both victims and perpetrators with a sense of justice. Finally, this work scrutinizes three key mechanisms for gender-sensitive transitional justice in Libya, involving urgent justice system reform, establishment of an independent truth-seeking and reconciliation commission to investigate gender-based crimes committed by all parties to the recent civil war, and finally the setting up of a Special Court for Libya as a hybrid judicial system for bringing perpetrators to justice and bring justice to victims.
The Arab Spring has inaugurated a new form of politics that represents a shift from a ‘politics from above’ to a ‘politics from below’ in regard to gender policy in Tunisia. Discourse surrounding state policy on gender, formerly the purview of elite groups, has recently been shaped and driven by popular organisations and associations. This article draws on Habermas to argue that the shift has been facilitated by the emergence of a new public sphere and engaged civil society following the fall of the Zine El Abidine Ben Ali regime in 2011. To demonstrate the emergence and diversity of Tunisian civil society, we focus on the promulgation of a new constitution and the debate surrounding Article 28, which has been contested by some Tunisians as reducing women's status to ‘complementary’. A discussion of women's status in the history of Tunisian family law, especially in the popularly valorised Code of Personal Status, illustrates how women's rights were historically expanded as a top-down policy or ‘politics from above’. We juxtapose this historical context with the present period of transition and constitution writing since 2011. An examination of quotations from Tunisian women, both opponents and supporters of Article 28, demonstrates the shift in Tunisia from a ‘politics from above’ to a ‘politics from below’ as women's groups are making demands upon the state and voicing their concerns in ways that have profoundly influenced the tenor of debates around gender politics in the country.
How does a person come to understand his or her problems in terms of
rights? This is a critical problem for the battered women's movement as
well as for other human rights movements that rely on rights awareness
to encourage victims to seek help from the law. The adoption of a
rights consciousness requires experiences with the legal system that
confirm that subjectivity. Rights-defined selves emerge from supportive
encounters with police, prosecutors, judges, and probation officers. This
empirical study shows how victims of violence against women come to take
on rights consciousness.
This essay surveys feminist scholarship and praxis on transitional justice, examining its ongoing contribution to the conceptualization and design of transitional justice mechanisms. We examine some of the gender implications of a specifically ‘transitional’ theory of justice. The essay concludes by proposing that feminist theory should focus on how transitional justice debates help or hinder broader projects of securing material gains for women through transition, rather than trying to fit a feminist notion of justice within transitional justice frameworks.
Do constitutions safeguard the rights of women? What is the importance of constitutions in the context of defending women’s rights? These questions are often raised within the framework of gender studies and organizations calling for women’s rights. Why is this the case? There are three considerations to bear in mind. First, there is the critique aimed at liberal feminism, on the grounds of the latter’s excessive focus on reforming and amending laws to secure women’s rights, while ignoring, to a large extent, the prevalent authoritative system and social norms which can obstruct the implementation of just laws that are beneficial to society. This can lead to unanticipated results that may not necessarily be in the interest of women and may not achieve the expected goal.
Chapter I provides a positive answer to the question, Why should a society engage with a painful past? By drawing attention to the normative weight — but also to the strategic value — of resentment and indignation as evaluative responses to oppression and injustice, Chapter I dismisses the sceptic’s fear of their destabilising impact on democratisation processes.
This paper focuses on competing appropriations of international women’s rights standards in the framework of the Moroccan Equity and Reconciliation Commission (ERC) and its follow-up projects. I argue that, even if the ERC’s gender approach has been introduced as part of international models of transitional justice, it is geared toward earlier women’s rights and human rights activism, as well as to established state practices of at least selectively supporting women’s rights. Like political reform in general, the ERC and its gender approach are an outcome of internal, long-time dynamics of change. Within the ERC’s politics of gender, there exists a tendency to depoliticize women’s rights activism in the process of reconciliation by making women a target for welfare measures and “human development.” Yet, at the same time, the officially recognized gender approach also allows for strategies to broaden the basis for women’s rights activism by making women’s experiences of violence during the “Years of Lead” (the period of fierce repression under the rule of Hassan II), an issue of concern in the framework of its new politics of memory. The implementation of the ERC’s gender approach can be interpreted as an example of how women’s rights activism may be able to push its agenda while adjusting to both transnational discourses and national politics.
What role do transitional justice processes play in determining the gender outcomes of transitions from conflict and authoritarianism? What is the impact of transitional justice processes on the human rights of women in states emerging from political violence? Gender Politics in Transitional Justice argues that human rights outcomes for women are determined in the space between international law and local gender politics. The book draws on feminist political science to reveal the key gender dynamics that shape the strategies of local women’s movements in their engagement with transitional justice, and the ultimate success of those strategies, termed ‘the local fit’. Also drawing on feminist doctrinal scholarship in international law, ‘the international frame’ examines the role of international law in defining harms against women in transitional justice and in determining the ‘from’ and ‘to’ of transitions from conflict and authoritarianism. This book locates evolving state practice in gender and transitional justice over the past two decades within the context of the enhanced protection of women’s human rights under international law. Relying on original empirical and legal research in Chile, Northern Ireland and Colombia, the book speaks more broadly to the study of gender politics and international law in transitional justice.
With the 2011 "Arab Spring", the issue of women's empowerment has emerged as a parallel movement in the Middle East and North Africa (MENA). What are the implications of the women's empowerment movements in the MENA for improved political representation and rights? Do these developments contribute to long-term socio-political, legal, judicial, and economic reforms that would improve overall human rights, and especially women's rights in the MENA? This paper is a comparative survey of women's empowerment and rights, especially in terms of general human rights principles, as well as in terms of political representation in postrevolution Tunisia and Egypt. The level of analysis is Amartya Sen's theories of "development as freedom". Applying Sen's freedom-based development theories, focusing on women's agency in attaining rights and freedoms for the broader goal of human rights and socioeconomic development accounts for the uniqueness of this study.
This chapter suggests that a gender perspective on the successive moments in the flux of peace and war is not an optional extra but a stark necessity. It shows what some of features of conflict and conflict resolution are and describes relations between them that suggest a continuum of violence. Gender power is seen to shape the dynamics of every site of human interaction, from the household to the international arena. A gender analysis reveals imbalanced sex distributions. The economic distress, militarization, and divisive shifts in ideology are considered. It then explores the three manifestly gendered elements of war: mobilization into the armed forces; the catastrophic disruption of everyday life; and brutalization of the body. The three aspects of postconflict situations are explored: displacement; economic and social reconstruction; and aid, justice, and reconciliation. The power imbalance of gender relations in most societies generates cultures of masculinity prone to violence.
This study gets to the heart of examining what counts as conflict-related gender violence under international law. Using empirical research from Liberia, Northern Ireland and Timor-Leste, the study specifically explores and explains variance beyond strategic sexualized violence employed in some conflicts, to analyze the ways that private individualistic violence is influenced by conflict across the three case studies. Proposing a set of variables as possible determinants of wide-ranging forms of violence, the study proposes that on a continuum of “political public violence” to “endemic private violence,” there are forms of violence that may sit somewhere “inbetween.” The analysis queries where this “in-between”’ violence should fit in the thresholds provided by law and what consideration should be given to the political and private violence nexus that the research demonstrates.
Despite a growing awareness of the universality of intimate partner violence and its recognition as a human rights violation, much less is known about the dynamics, as well as the specific forms and regulation of this violence in conflict and post conflict settings. While substantial legal consideration has been given to sexual violence occurring during armed conflict in recent decades, specifically to rape, arguably a concentration on high-profile extraordinary violence has obscured attention from the regular violence that women routinely experience in conflict and post-conflict societies. Our knowledge gap limits what we understand generally about the multidimensional complexities of intimate violence in conflict settings. It also obscures the relationship between various categories of gender-based violence, and the ways in which certain forms and practices of violence reinforce and sustain others. Based on unique empirical data from the thirty year long conflict in Northern Ireland this article examines the relationship between intimate and conflict related violence, with a particular emphasis on exploring the forms and modalities of intimate violence occurring alongside armed conflict or extensive communal violence. We analyze the way in which state and non-state actors are positioned to such violence, the complimentary masculinities that are distinguishable between theoretically diametrically positioned groups, while underscoring the effects on legal accountabilitythat results from the parallel realities of societal dysfunction. The conclusion points to the need for a denser and integrated analysis of violence against women in conflicted societies.
The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.
This article examines the rarely talked about subtleties of Moroccan reform in the realm of women’s rights and its inadequate fulfillment of obligations to international human rights standards. The Preamble to Morocco’s post-Arab Spring 2011 constitution follows the example of its 1996 version, in which the state declared its "determination to abide by the universally recognised human rights." However, while the state is often hailed in the international forums and media as a true trendsetter in the realm of women’s rights in the Middle East and North Africa region, this analysis of the much celebrated Family Code and its two main goals—"doing justice to women" and "preserving men’s dignity"—and of the regime’s ambivalent discourse on gender equality as defined by the Convention on the Elimination of All Forms of Discrimination against Women () paints a more realistic picture. Both of these cases indicate that the state is failing to ameliorate the legal position of women and to consider women as autonomous and individual human beings with intrinsic rights not contingent upon first fulfilling their customary obligations. I contend, therefore, that the way the reformed Family Code has formulated its goals and the way that the law and the state continue to conceptualize a woman go against the main principle of individuality contained in the Universal Declaration of Human Rights and CEDAW to which Morocco has continually committed itself, at least on paper.
What has the Arab Spring meant to women, and women's rights, in the region? Three years after the mass social protests of January and February 2011, when and where can we expect the promises of democracy and equality, and the revolutionary spirit of unity and purpose, to be realised? This Foreword offers a stock-taking of events and possible future directions, with a focus on prospects for a women-friendly democratisation.
This paper analyses the challenges confronting Egyptian women during the transition government of the Muslim Brotherhood (MB). It provides the background for the legal system under Mubarak and offers a comparative look at the legislation that was being discussed or has been implemented during the political transition after the 25th of January Revolution. A backlash against women and their agenda prompted conservative calls for amendments of legislations that were passed during the Mubarak era. This paper underscores the importance of women's involvement in transitional processes for a successful democracy in Egypt. It underlines the shortcomings in the design of electoral laws in relation to including women and other groups such as the Copts and young people. It describes the way by which the Freedom and Justice Party (FJP) – the MB's party – first ignored then reconfigured the mission and mandate of the National Council for Women during the transitional period. It provides a detailed account of the Mubarak-era laws, comparing them to those proposed by various political forces and opposed by the FJP government. The paper also compares Egyptian laws both before and after the revolution with the international human rights conventions to which Egypt is party, pointing at inconsistencies and outright violations, including the treatment of gender-based violence (GBV), the debate around female genital mutilation (FGM) laws, and issues of gender and Sharia in the draft Constitution.
The Libyan Revolution marks a watershed moment in Libyan history and more specifically in the history of women's participation in the public space. Women were at the forefront of the demonstrations as protesters, medical workers, and aid providers, as well as organising behind the scenes and in the diaspora calling for political change and a just inclusive transition to democracy. However, they have been systematically excluded from the public sphere facing intense de-politicisation and silencing at a crucial moment in their national political transformation process. The Libyan Revolution appears here, similar to other Arab revolutions, to present a ‘gender paradox’. On one hand, women are the politically empowered agents of the Revolution and change. On the other hand, they are the victims of a new kind of political violence and exclusion. Thus, there is a need to address women's participation in the public sphere from a different approach than the usual ‘women's empowerment’ approach. The suggested approach here is a more inclusive participatory integrated one of political and normative frameworks. Women's role should not be limited to defending women's rights issues or just their formal numerical representation in decision-making bodies. Rather they should struggle to become influential shapers of a new discourse of politics of inclusion which rests upon inclusive state-building, gender-equitable institutional reform, inclusive social transformation, demilitarisation and peace-building.
This paper examines gender politics of the Tunisian revolution and the transitional period from 14 January 2011 to the elections on 23 October 2011 within the theoretical framework of revolutionary ‘restoration’. The broader arc of the revolution saw a radical change in Tunisia's gender politics from ‘state-feminist’ ideology of the pre-revolution period to decentralised ‘gender activisms’ of the post-revolutionary period. Revolution, however, also moves towards restorations of social and gender dynamics of the previous political order. The post-revolutionary ‘gender activisms’ sought to restore the justice of foundational moral principles: ‘secular human rights’ or ‘Islamist principles’. The transitional government also restored the gendered hierarchies reminiscent of the nationalist period. The restoration of the foundational principles of the Tunisian state and Third World nationalist discourse signalled the persistence of a gender paradox where Tunisian women's social struggles coexisted within the male-gendered politics. The paper presents accounts of women's marginalisation from the post-revolutionary transitional committees, the transitional governments' ministerial positions and from the media. The interviews show diversity in political opinions and orientations between women from different social classes, religious identifications and from different regions.
Introduction 1. The Power of Law 2. Rape: Law and the Disqualification of Women's Sexuality 3. A Note on Child Sexual Abuse 4. The Quest for a Feminist Jurisprudence 5. Law, Power and Women's Studies 6. Theory into Practice: The Problem of Pornography 7. The Problem of Rights Bibliography Index.
Debates over gender relevant legislation such as family law have led to serious conflict in many periods of Middle Eastern history, especially in recent times. One way to understand the intensity of the current debates is to recognize that gender issues raise fundamental questions about the relationship between individual and society and the role of states. In this article I argue that, in considering gender relevant legislation in the Middle East, we need to develop a framework that is different from the paradigms anchored in the politics of western liberal democracies in the U.S. and Western Europe. The frame of reference I propose is built upon the following propositions. (1) We should treat gender legislation in the Middle East as an inherently political matter that goes to the heart of the organization of power. Such a perspective opens up the possibility of considering the role of multiple and complex political processes including pressures from below by social movements and top down reforms. (2) We need to reformulate the concepts of tradition and modernity that have pervaded the study of gender in the Islamic world. Tradition and modernity as two distinct, well-defined cultural forms should be dropped altogether. Instead, the discourses of tradition and modernity should be taken as political constructs and the following question should be asked: who benefits from each discourse in given political contexts? (3) The role of kin-based solidarities should be considered in the nexus of conflicts and alliances that shape the process of state formation. The individualistic model of politics in western liberal democracies has limited value for the understanding of political processes in the historical development of the Middle East. The focus should be instead on the role of identities based in communities that define themselves in collective and ascriptive terms of common kinship.
The electronic version of this book has been prepared by scanning TIFF 600 dpi bitonal images of the pages of the text. Original source: Protest, policy, and the problem of violence against women : a cross-national comparison / S. Laurel Weldon.; Weldon, S. Laurel.; xiv, 287 p. ; 24 cm.; Pittsburgh, Pa. :; This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 2 of the TEI in Libraries Guidelines. Digital page images are linked to the text file.
Muslim family lawâand its principles regarding marriage, divorce, personal maintenance, paternity, and child custodyâis the one of the most widely applied family law systems in existence today. A number of states have recently codified Muslim family law for the first time or have issued significant amendments or new laws, spurred in many cases by interventions from womenâs rights groups and other advocacy organizations. Women and Muslim Family Laws in Arab States combines an examination of womenâs rights under Muslim family law in Arab states across the Middle East with discussions of the public debates surrounding the issues that have been raised during these processes of codification and amendment. Drawing on original legal texts and explanatory statements as well as extensive state-based secondary literature, Welchman places these discussions in a contemporary global context that internationalizes the domestic and regional particularities of Muslim family law. Accompanied by a full bibliography and an appendix providing translated extracts of the laws under examination Women and Muslim Family Law considers laws from the Gulf States to North Africa in order to illustrate the legal, social, and political dynamics of the current debates.
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