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Between patriarchy and occupation: violence against women in the Occupied Palestinian Territories

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Abstract

1. The legal status of women in the OPT.-2. State's response to VAW and GBV.-3. Women's Rights, legislative reforms and the Israeli Military Occupation.-4. Conclusion. Violence against women in the Occupied Palestinian Territory (OPT) has been a long-standing problem. Women and girls experience various forms of violence structurally embedded in discriminatory laws and traditional practices, as well as the violence of the Israeli occupation. Violence against women (VAW) is deeply unreported in the OPT. The last reliable statistic on gender based violence (GBV) was produced in 2011 by the Palestinian Central Bureau of Statistics (PCBS). 1 The study shows alarming data: around 37% of married women have been exposed to some form of violence by their husbands (29.9 % in the West Bank and 51.1% in the Gaza Strip) and those who seek police help are likely not to have their case heard in court. 2 Indeed, 48.8% of women in the West Bank and 76.4% in the Gaza Strip (with an average of 58.6%) have declared that they have been psychologically abused; while 55.1% of women have been subjected to economic violence; 54.8% to social violence; 23.5% to physical violence; and 11.8% to sexual violence. 3 Indeed, 3.3% of married women reported being exposed to psychological violence at check points by Israeli soldiers, while 0.6% declare that they have been exposed to physical violence and to sexual harassment (0.2%) by the Israeli army. 4 65.3% of women stated that they preferred to remain silent concerning violence committed by their husbands, while 30.2% sought help from their family and only 0.7% sought assistance from police or social services. 5 The study highlights that girls between 16 and 18 years old experienced the highest level of violence (24%), followed by women between 21 and 25 years (23%) and between 26 and 35 (20%). 6 Although there are no reliable statistics on child marriage, it is estimated that the phenomenon touches 9-10% of girls under the age of 18. 7 The latest statistics are shocking and lead to the question of how to understand GBV and VAW in the OPT. In this chapter I argue that it is the actual legal and political context that has exacerbated, if not created, an environment unable to protect women victims of VAW and GBV. Specifically, Palestinian patriarchal culture, a mix of laws that penalise women and do not conform to international standards set by the CEDAW, and the long-standing political violence of the Israeli occupation have created, reproduced and perpetuated the problem of VAW and GBV in the OPT.
GIORGIA BALDI
Between patriarchy and Occupation: violence against women in the Occupied
Palestinian Territories
Summary: 1. The legal status of women in the OPT. 2. State’s response to VAW and GBV. 3.
Women’s Rights, legislative reforms and the Israeli Military Occupation. 4. Conclusion.
Violence against women in the Occupied Palestinian Territory (OPT) has been a long-standing
problem. Women and girls experience various forms of violence structurally embedded in
discriminatory laws and traditional practices, as well as the violence of the Israeli occupation.
Violence against women (VAW) is deeply unreported in the OPT. The last reliable statistic on
gender based violence (GBV) was produced in 2011 by the Palestinian Central Bureau of Statistics
(PCBS).
1
The study shows alarming data: around 37% of married women have been exposed to
some form of violence by their husbands (29.9 % in the West Bank and 51.1% in the Gaza Strip)
and those who seek police help are likely not to have their case heard in court.
2
Indeed, 48.8% of
women in the West Bank and 76.4% in the Gaza Strip (with an average of 58.6%) have declared that
they have been psychologically abused; while 55.1% of women have been subjected to economic
violence; 54.8% to social violence; 23.5% to physical violence; and 11.8% to sexual violence.
3
Indeed,
3.3% of married women reported being exposed to psychological violence at check points by Israeli
soldiers, while 0.6% declare that they have been exposed to physical violence and to sexual
harassment (0.2%) by the Israeli army.
4
65.3% of women stated that they preferred to remain silent
concerning violence committed by their husbands, while 30.2% sought help from their family and
only 0.7% sought assistance from police or social services.
5
The study highlights that girls between
16 and 18 years old experienced the highest level of violence (24%), followed by women between 21
and 25 years (23%) and between 26 and 35 (20%).
6
Although there are no reliable statistics on child
marriage, it is estimated that the phenomenon touches 9-10% of girls under the age of 18.
7
The
latest statistics are shocking and lead to the question of how to understand GBV and VAW in the
OPT.
In this chapter I argue that it is the actual legal and political context that has exacerbated, if not
created, an environment unable to protect women victims of VAW and GBV. Specifically,
Palestinian patriarchal culture, a mix of laws that penalise women and do not conform to
international standards set by the CEDAW, and the long-standing political violence of the Israeli
occupation have created, reproduced and perpetuated the problem of VAW and GBV in the OPT.
The Palestinian case is particularly complex and should be understood within the context of its
political and legal development. In 1948, the State of Israel was established in a part of so called
‘historical Palestine’. In 1967, Israel illegally occupied most of the Palestinian Territories, establishing
1
Palestinian Central Bureau of Statistics (PCBS), Violence survey in the Palestinian Society, OPT, 2011.
2
The Path to Justice for Palestinian Women, UN Women, 2016. Available at http://palestine.unwomen.org/en/news-and-
events/stories/2016/03/path-to-justice.
3
Palestinian Central Bureau of Statistics, cit.
4
Ivi, Table 1.
5
Ibidem.
6
The Palestinian NGO “Sawa-All the women together today and tomorrow” provides a hotline service for women victims
of violence since 1999. The data relies on SAWA’s hotline statistics from January to 1November 2015.
7
United Nations, Report of the Special Rapporteur on violence against women, its causes and consequences, on her mission to the Occupied
Palestinian Territory/State of Palestine, Human Rights Council, thirty-fifth session, A/HRC/35/30/Add.2, June 2017, para. 39.
Available at https://unispal.un.org/DPA/DPR/unispal.nsf/0/2978D6A903470D128525813D004F822C
settlements and controlling militarily all Palestinian areas. In 1974, the Arab League recognized the
Palestinian Liberation Organization (PLO) as the sole representative of the Palestinian people and in
1988 the Palestinian National Council of the PLO approved the declaration of Palestinian
independence which proclaimed the «state of Palestine on our Palestinian territory with its capital
Jerusalem».
8
The declaration also called for urgent negotiations on the basis of UN resolution 181
9
and 242.
10
Political stagnation and years of military occupation led to the first Palestinian uprising
(between 1987 and 1993) and the ‘Oslo Accords’ (1995), the first agreement between Israel and the
PLO. The agreement led to hopes for peace: it created the Palestinian Authority, shared the
administration of the territories under Palestinian and Israeli control and called for the total
withdrawal of Israel from the Gaza Strip. The hope did not last long, as the accords were never
implemented. A second Palestinian uprising erupted and ever since 2000, every peace agreement has
failed miserably. To make things worse, the death of Arafat in 2004 opened up an internal conflict
between the two main political parties, Hamas and Fatah. This conflict led to a territorial and
political division between the West Bank (where the un-elected Fatah is in power) and the Gaza Strip
(where Hamas is governing, following a coup). The long-lasting conflict and occupation, coupled
with the political, territorial and legal division of the OPT have led to confusing and incoherent
multiple legal systems being applied across the country.
The Palestinian legislative framework falls under different systems (Israeli, Jordanian, Egyptian
and Palestinian with a sporadic use of Ottoman laws and regulations derived from the British
Mandate), according to geographical location: in Gaza the Egyptian Penal Code is applied, along
with local laws and Shari’a law; in the West Bank the Jordanian Penal Code is applied, while East
Jerusalem is under Israeli jurisdiction.
11
Indeed, due to the political division between Fatah and
Hamas and the consequent territorial and political separation between the West Bank and the Gaza
Strip,
12
the Palestinian Legislative Council (PLC) has been paralysed in the West Bank since 2007
13
and few new regulations have been enacted through presidential decree.
14
The paralysis of the legal
system has delayed the implementation of laws that eliminate discrimination against women in
conformity with human rights.
15
As a result, Palestinian women continue to be legally discriminated
against in family and personal status matters, including domestic violence, rape, adultery, marital
rape, etc.
16
8
Y. M. IBRAHIM, P.L.O. proclaims Palestine to be an independent state; hints at recognizing Israel, in The New York
Times, 1988. Available at http://www.nytimes.com/1988/11/15/world/plo-proclaims-palestine-to-be-an-independent-
state-hints-at-recognizing-israel.html?pagewanted=all&mcubz=3.
9
The resolution concerned the creation of independent Arab and Jewish States and a Special International Regime for the
city of Jerusalem. United Nations, Resolution 181 (II). Future Government of Palestine, A/RES/181 (II), Nov. 1947, Retrieved 11
January2012. Available at https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F0AF2BD897689B785256C330061D253
10
The resolution refers to the settlement of the Israeli/Palestinian conflict. It condemns Israel for the illegal occupation of
Palestinian lands and it advocates the return of refugees and Jerusalem as capital of Israel and Palestine. It also asks Israel to
withdraw from the Palestinian Territories. See S. D. BAILEY, The Making of Resolution 242, Kluwer Academic Publishers,
Lancaster, 1985.
11
National Strategy to Combat Violence against Women 2011-2019, Palestinian National Authority, Ministry of Women’s Affairs
2011. Available at http://www.lacs.ps/documentsShow.aspx?ATT_ID=5501.
12
Following the establishment of the Palestinian Authority (PA), in 2003 the PLC begana harmonization of the Palestinian
legislative framework. However, due to internal political conflict between the two main parties (Fatah and Hamas) which
led to the existence of two governments, one in Gaza led by Hamas, and the other in the West Bank, led by Fatah, there
was a suspension of the legislative process and different legislations developed in Gaza and the West Bank., Ruling the oPt II:
The West Bank Model, Middle East Report No. 78, International Crisis Group, 2008. Available at
www.crisisgroup.org/en/regions/middle-east-north-africa/israel-the oPt.aspx.
13
It is worth pointing out that many of the laws enacted by the PLC before 2007 were fragmented, incoherent and difficult
to implement. See, Legal Reform in the oPt: Decolonisation and State-building, in Palestine Yearbook of International Law, Birzeit
University: Institute of Law 15, 2009, p. 461.
14
National Strategy to Combat Violence against Women 2011-2019, cit.
15
Ivi.
16
Ivi.
Moreover, the Israeli occupation and the difficult political negotiations have further contributed
to the legal fragmentation of the area. The Oslo Agreement (1995), which divided the West Bank
into areas (A, B, and C), created different status of governance and different legal systems regulating
VAW. In area A (18% of the territory of the West Bank) the Palestinian Authority (PA) is in full
control of security and civil matters, while in area B the PA controls civil matters and Israeli
authorities control security. In area C (which represents 62% of the West Bank) Israel has full
control over security and planning construction (in this area, Palestinians have limited access to
water, electricity, education etc.).
17
For the Palestinians of East Jerusalem the situation is also
complicated. Although they have the status of ‘permanent residents’ of Israel, they are considered as
‘immigrants’:
18
the UN Rapporteur has highlighted that while Israel offers greater freedom of
movement to Palestinians residing in Israel compared to those living in the OPT, it discriminates
against them in comparison to the Jewish population living in the country.
19
The absence of a formal
governmental authority in specific areas and the legal and political fragmentation of the OPT
represent one of the main obstacles to the state’s obligation to prevent GBV and VAW, as the PA
does not have full jurisdiction in the whole Palestinian territory.
20
It goes without saying that
conflicting legal and political regimes provide a confusing legal framework in relation to VAW and
the punishment of perpetrators.
21
Indeed, the Israeli occupation and the political violence (which includes restriction of movement,
house demolitions, separation of family members, etc.) have also exacerbated and increased cases of
violence against women in the OPT. As the High Commissioner for Human Rights in the UN
Human Rights Council, Navi Pillay, stated, «the combination of decades of Israeli occupation» and
«the use of force against Palestinians by Israel [] expose women to a continuum of violence in all
spheres of life».
22
This is also shown by many scholars who have found a link between political
violence and VAW, highlighting that prolonged exposure to political violence leads to an increase in
domestic violence.
23
Political violence increases the pressure on families which become vulnerable to
various stress-related factors,
24
and it changes the family unit
25
as well as gender and age roles.
26
Israeli political violence has created a difficult economic situation which has led to a high percentage
of women being unemployed; it has limited the freedom of movement of Palestinians (including
women); demolished many houses (for a lack of building permits or as punitive actions or forced
eviction) etc. Indeed, the conflicts and blockades of Gaza have rendered Palestinian women
17
Occupied Palestinian Territory- Area C. OCHA- United Nations Office for the Coordination of Humanitarian Affairs.
Available at www.ochaopt.org/location/area-c.
18
Israeli practices affecting the human rights if the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, United
Nation General Assembly, A/66/356, 2011. Available at
https://unispal.un.org/DPA/DPR/unispal.nsf/0/48843172ED03374F8525792E0060FFDC
19
Report of the Special Rapporteur on violence against women, cit. para. 14.
20
Report of the Special Rapporteur on violence against women, cit. para. 47.
21
Ivi, para. 17.
22
Ivi, para. 12. See also see also E. BUYUKGUL, The women of Palestine: caught between the occupation and patriarchy, in Informed
Comment, 2015. Available at https://www.juancole.com/2015/04/palestine-occupation-patriarchy.html
23
Regarding the link between political violence and gender violence see also A. J. SHEIDOW, D. GORMAN -SMITH, P.H.
TOLAN, and D. B. HENRY, Family and community characteristics: Risk factors for violence exposure
in inner-city youth in Journal of Community Psychology, 29, 2001, p. 345-360; R JEWKES, Intimate partner violence: Causes and prevention,
in Lancet, 359, p. 1423-1429.
24
A. AL-KRENAWI, J. R. GRAHAM, Mental health practice for the Muslim Arab population in Israel, in Understanding
gender and culture in the helping process, edited by C. L. Rabin, Thompson Brooks/Cole, New York, 2005; R. SROUR, Communal
and familial war-related stress factors: The case of the Palestinian child, in Journal of Loss and Trauma, 11, 2006, p. 289-309.
25
P.T. JOSHI, D.A.O’DONNELL, L. M. CULLINS and S. M LEWIN, Children exposed to war and terrorism, in Children exposed to
violence, edited by M. Ferrick and G. B. Silberman, Brookes, Baltimore, 2006, p. 53-84; S. M. WEINE, N. MUZUROVIC, Y.
KULAUZOVIC, S. BESIC, A. LEZIC, A. MUJAGIC, Family consequences and refugee trauma, in Family Process, 43, p. 147-160.
26
J. SUAD, Conceiving family relationships in post-war Lebanon, in Journal of Comparative Family Studies, 35, 2004, p. 271-293.
particularly vulnerable
27
and Israeli search operations have had an important impact on women: the
UN Special Rapporteur on violence against women, Dubravka Simonovic, pointed out that
«a woman reported to me for example that she was sleeping all dressed in case she would be woken
up by night raids and would need to be seen by soldiers»
28
and that «settler violence [] translates in
the loss of livelihood for the family, girls being harassed on the way to school to the extent that their
families prefer not to send them to school. Settlers’ violence needs to be met with accountability,
which seems to be lacking».
29
Indeed, political and social infrastructures are threatened by instability
and war, and are not improved by ongoing occupation.
30
This, however, does not exempt Palestinian
authorities in the West Bank and Gaza Strip from their responsibility for the increase in VAW cases
and the perpetration of GBV in the OPT.
1. The legal status of women in the OPT
In November 2012, Palestine, with the General Assembly resolution 67/19, acquired the status of
non-member observer in the United Nations. Two years later, in 2014, Palestine ratified key human
rights instruments such as the ‘Convention on the Elimination of All Forms of Discrimination
against Women' (CEDAW),
31
the ‘International Covenant on Civil and Political Rights’ (ICCPR),
32
the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’
(CAT)
33
and the ‘Convention on the Rights of Persons with Disabilities’ (CRPD).
34
Although
Palestine is not an independent state with full sovereignty due to the Israeli occupation and the
political disputes over land and territory, it has committed itself to abide by international law and
human rights standards. In particular, article 10 of the ‘Palestinian Basic Law’
35
(the ‘Palestinian
Constitution) states that «basic human rights and liberties shall be protected and respected» and that
«the Palestinian National Authority shall work without delay to become a party to regional and
international declarations and covenants that protect human rights».
36
Indeed, article 9 of the
Palestinian Basic Law specifies that «Palestinians shall be equal before the law and the judiciary,
without distinction based upon race, sex, color, religion, political views or disability».
37
This article
creates the foundation for equality and non-discrimination in the Palestinian legislative system. The
27
Report of the Special Rapporteur on violence against women, cit. para 32.
28
UN expert: When Palestinian men beat their wives, it’s Israel’s fault, in UN Watch. Available at https://www.unwatch.org/un-
expert-palestinian-men-beat-wives-israels-fault/.
29
Ivi.
30
I. AL-DAQAQ, N. KARIM, Karim, N. EZBIDI SAID, and W. ABU-FASHA, Palestine human development report 2004, Berzeit
University Development Studies Program, Ramallah, 2004; R. BOCCO, M. BRUNNER, I. DANIELS, L. DE MARTINO, J. AL
HUSSEINI and F. LAPEYRE, Palestinian public perceptions. Report 9, University of Geneva, Institute Universitaire/United Nations
Development Program.Geneva, 2006.
31
, ‘Convention on the Elimination of All Forms of Discrimination against Women’ (CEDAW), UN General Assembly, 1979.
Available at http://www.un.org/womenwatch/daw/cedaw/.
32
International Covenant on Civil and Political Rights’. UN General Assembly, Adopted and opened for signature, ratification
and accession by General Assembly and accession by General Assembly resolution 2200A (XXI) of 16 December 1966.
Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
33
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, UN General Assembly, Adopted and
opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984.
34
, Convention on the Rights of Persons with Disabilities’, UN Human Rights Office 2006. Available at
http://www.ohchr.org/EN/HRBodies/CRPD/Pages/ConventionRightsPersonsWithDisabilities.aspx. It is worth noting
that, in theory, states could be held accountable under international mechanisms, such as the International Criminal Court
(ICC) and the International Court of Justice (ICJ), and treaty mechanisms, if international rules have not been incorporated
into local national legislation. See UN Security Council Resolution 1325: s/RES/1325 (2000) which specifically addresses
women’s rights in times of war.
35
The text of the Palestinian Basic Law can be found at http://www.palestinianbasiclaw.org/.
36
Ivi, art. 10.
37
Ivi, art. 9.
PA has also stated its commitment to respect human rights and international convention in the 2009-
2011 government plan (‘Ending the Occupation: Establishing the State’) which points out that
«human rights and fundamental freedoms are binding and must be respected. The state guarantees
the religious, civil, political, economic, social and cultural rights and freedoms of all its citizens. It
also ensures their enjoyment of these rights and freedoms on the basis of equality and equal
opportunities».
38
Unfortunately, as I shall argue, the commitment to gender equality entrenched in
the CEDAW and supported by the Palestinian Basic Law has not been translated into a real change
in norms and policies to fight GBV and VAW.
The legislative framework in the OPT is a combination of different legislative systems: certain
laws are promulgated by the Palestinian Legislative Council
39
(inactive, in the West Bank, since 2007)
and ratified by the President. For other regulations Jordanian law is in use (in the West Bank), and
Egyptian law in the Gaza Strip (along with Sharia law).
40
In East Jerusalem, considered by
international law an ‘occupied territory’,
41
Israeli law applies.
42
Israel is also responsible for the
implementation of international law and fundamental human rights in areas under its control in the
OPT, as stated by the International Court of Justice in its advisory opinion which points out that
Palestinian areas under Israeli control remain «under an obligation not to raise any obstacle to the
exercise of […] rights».
43
This mix and multiplicity of laws has led to inconsistencies in the
Palestinian legal framework and to many problems in relation to women and their access to justice.
44
Although Palestine’s legal framework should abide by international law and conventions, provisions
relating to gender equality and non-discrimination remain limited:
45
in fact, sexual harassment,
marital rape and many other important women’s rights are not addressed by the law. The main legal
references with which to combat personal offence crimes (including VAW) are the Jordanian Penal
Code of 1960 (applied in the West Bank) and the Egyptian Penal Code of 1936 in the Gaza Strip.
These codes, as the UN Special Rapporteur noted, contain discriminatory provisions based on
gender, sex, age and marital status
46
that leave women vulnerable and without any protection by the
state or the juridical system.
One recurrent problem is the age of legal marriage: based on the Palestinian Child Law of 2004,
the minimum age is eighteen. However, Jordanian Personal Status law
47
(applied in the West Bank),
set the minimum age at sixteen for males and fifteen for females while Egyptian family law sets it at
38
, Ending the Occupation: Establishing the State, Palestinian National Authority 2009. Available at http://www.mop-
gov.ps/web_files/
issues_file/090825%20Ending%20Occupation,%20Establishing%20the%20State%20-
%20Program%20of%20the%2013%20
government.pdf.
39
The predecessor to the PLC, the Palestinian National Council, also passed 21 ‘laws’ which are still in force today.
40
A Questtion of Security. Violence against Palestinian Women and Girls, in Human Rights Watch 18.7, 2006. Available at
https://www.hrw.org/report/2006/11/06/question-security/violence-against-palestinian-women-and-girls
41
International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 167.
42
Ibidem.
43
Ibidem.
44
Report of the Special Rapporteur on violence against women, cit, para 61.
45
Ivi, para 62.
46
K. H. NASER, Palestine and the Convention on the Elimination of all Forms of Discrimination against Women: Implications of
Ratification (CEDAW 1979), ICHR, 2013.
47
As in many parts of the Middle East, personal status law is governed by religious affiliation. Hence, the personal status of
Christians is governed by the Personal Status law of Orthodox Christians and the Personal Status law of the Coptic
Orthodox Church of 1938 while the family affairs of Muslims are governed by Jordanian and Egyptian law. In this chapter
I will take into consideration Jordanian and Egyptian law due to space constraints. These laws apply to Muslims in the West
Bank and Gaza Strip and are drawn on the principle of the Hanafi School of Law. These codes are enacted by state
authorities and adjudicated in state-administered Shari’a courts presided over by the Chief of the Higher Shari’a Court
(Chief of Justice).
eighteen for males and seventeen for females (the distinction between female and male in relation to
the legal age of marriage shows the discriminatory attitude of these laws). Indeed, a judge has the
right to allow the marriage of a minor if s/he believes that it is in the best interest of the child. This
has led to a high percentage of child marriage in the OPT.
48
Moreover, although Palestine has ratified
the CEDAW, it still allows polygamy, defined by the CEDAW (in its general recommendations n.
24) as a harmful practice for women.
49
The UN Special Rapporteur has also pointed out that
although Family law and Personal Status law allow women to include the prohibition of polygamy in
pre-marriage contracts, in practice this is rarely respected by judges, who have great discretionary
power in the West Bank.
50
In the West Bank and Gaza, where Muslim residents are subject to the Jordanian Law of Personal
Status (1976) and the Egyptian Law of Family Rights, there is great discrimination towards women in
matters of family law. The laws applied in these areas allow the husband to divorce verbally, while
women need to pass through the legislative system and the consent of the Sharia judiciary to obtain a
divorce. Women’s organizations and associations have repeatedly advocated the need to revoke
discriminatory legal provisions and to deter the arbitrary divorce of women by their husbands. They
also call for fair compensation for arbitrary divorce and for equal treatment for men and women in
relation to their ability to sue for divorce. Indeed, women are entitled to the custody of their children
only until their puberty.
51
Based on the Jordanian Personal Status law n. 16 of 1976 and the Egyptian
Family Law n. 303 of 1954, only men have the power to file for marriage and guardianship.
Moreover, sexual violence remains a concern. Marital rape is not criminalised and women victims
of sexual violence are stigmatized within Palestinian society. The Jordanian law n.16 (1960) defines
sexual violence (both rape and incest) as a crime «against public morals and ethics», and not as a
crime against the individual. Based on article 308 of the Jordanian law and article 291 of the Egyptian
Penal Code,
52
a sentence for rape can be suspended if a «legal and correct marriage contract is forged
between him and the victim».
53
Indeed, article 301 of the Jordanian law n. 16 (1960) includes an
increased sentence for rape if the victim was a virgin, as this is considered an ‘aggravating
circumstance’. In this sense, the message given by the law is that the punishment for the perpetrator
depends on the sexual experience of the victim, showing, in this way, the perpetration of institutional
discriminatory practices. Moreover, the actual law denies women victims of sexual violence the right
to a legal abortion (which is prohibited in almost all cases).
54
As a representative of the ‘Women’s
Center for legal Aid and Counselling’ stated: «[women victims of sexual violence] are left with one of
two difficult options: to abort the foetus on her own, which carries serious risks to her life and
48
Report of the Special Rapporteur on violence against women, cit, para, 38. See also Marrying Too Young, United Nations Population
Fund UNFPA, New York, 2012. Available at https://www.unfpa.org/sites/default/files/pub-
pdf/MarryingTooYoung.pdf.
49
General Recommendations adopted by the Committee on the Elimination of Discrimination Against women, Twentieth session, General
Recommendation n. 24. Available at https://www.escr-net.org/node/387809.
50
Z. JALLAD, Palestinian Women and Security: a Legal Analysis, in Geneva Centre for the Democratic Control of Armed Forces (DCAF),
2012. Available at https://www.files.ethz.ch/isn/152932/Legal_Analysis_EN.pdf.
51
A Question of Security, cit.
52
Although this law was repealed by the Egyptian People’s Assembly in 1999, Gaza continues to apply the non-amended
law.
53
Jordanian law n. 16, 1960. Indeed, a rapist will go to trial only if he divorces the victim within five years without any
reason (see Jordanian law n. 16, 1960, art. 308).
54
Article 321 of Jordanian penal law n. 16 (1960) reads «a woman who through any means performs an abortion on herself
or consents to another person applying such means shall be punished with six months to three years’ imprisonment”. A
legal exception is made in the West Bank if the health or life of the pregnant woman is at risk. The Egyptian Penal Code of
1937 (section 260-264) applicable in Gaza prohibits abortion without exception.
safety, or to continue with the pregnancy and bear the social and psychological burdens of an
'illegitimate' pregnancy and childbirth».
55
Another problem is the lack of provisions in the legal system concerning domestic violence.
Women victims of domestic violence in the OPT, in the absence of specific legislation, must rely on
general penal provisions on assault. Article 33 of the Jordanian Penal Code has foreseen different
levels of punishments based on how many days the victim is hospitalized
56
(the same principle
applies to ‘assault’): if a woman requires less than 10 days of hospitalization, a judge can dismiss her
claim and classify it as a ‘minor offence’.
57
Most of the time, prosecutors and judges try to reconcile
the parties,
58
leaving women victims of domestic violence without real legal protection. Indeed,
although a woman has the right to ask for divorce based on spousal abuses, the existing law requires
a medical report from a public hospital and two eyewitness testimonies, which is often difficult to
obtain.
59
Punishments for women committing adultery are also quite harsh. Egyptian penal law (applied in
Gaza) has foreseen a punishment (2 years of imprisonment for the wife and 6 months for the
husband)
60
for adultery: however, a man is guilty of adultery only if he commits it in the marital
home.
61
Indeed, killing the wife when found while committing adultery is considered a ‘mitigating
circumstance’ (article 340 of Jordanian Penal Law n. 16 1960 and article 237 of the Egyptian Penal
Code).
62
The UN Special Rapporteur has noted that although, through a few presidential decrees, some
positive steps have been taken, often defence lawyers rely on articles 99 and 100 (relinquishment of
personal right) which include mitigating penalties for killing (also when the victim is from the same
family as the perpetrator).
63
By applying these articles, the punishment comes to be based on
judiciary discretion: for this reason, the latest UN report (2017) discloses a profound preoccupation
with the continuous application of specific articles which deny women access to justice.
64
It is worth
noting the case of a man who was sentenced to two years of imprisonment by the Criminal Court in
Nablus for killing his wife.
65
The case is not only astonishing, as it shows that gender related crimes
are un-punished, but it also reveals the patriarchal culture of the judiciary system in the OPT. In
essence, the event highlights the fact that the criminal justice system is not neutral and that judges
understand and interpret legal texts based on prevailing social norms.
66
This problem is also linked to
the matter of women’s credibility in the criminal justice system, which has been analysed by a recent
55
Palestinian Women and Security: a Legal Analysis, cit.
56
Article 33, Law n. 16 (1960).
57
Ibidem.
58
A Question of Security, cit. interview with Nashat Ayush, chief prosecutor for Hebron, Bethlehem, 2006.
59
Ivi, interview with Ghadir al-Shaikh, attorney, Palestinian Working Women’s Society for Development, (PWWSD),
Tulkaram, 2005.
60
Egyptian Penal Law n. 58 (1937), article 274 and 277.
61
Egyptian Penal Law n. 58 (1937), article 277.
62
Article 237 of the Egyptian Penal Codes reads “whoever surprises his wife in the act of adultery and kills her on the spot
together with her adulterer-partner shall be punished with detention instead of the penalties prescribed in article 234
[permanent or temporary hard labor] and 236 [hard labor or imprisonment for a period of three to seven years]”. Indeed,
art 98 of the Jordanian Penal Code foresees a reduction of penalties when the crime was committed in a ‘state of fury’. The
article may be translated as follows: “he who commits a crime in a state of great fury resulting from an unlawful and
dangerous act on the part of the victim shall benefit from the extenuating excuse”.
63
Report of the Special Rapporteur on violence against women, cit, para. 66.
64
Ibidem.
65
ibidem.
66
N. SHALHOUB-KEVORKIAN and S. DAHER-NASHEF, Access Denied: Palestinian Women’s Access to Justice in the Occupied West
Bank, UN Women, OPT, 2014.
study that draws on gender stereotypes and ‘appropriate victim’s behaviour’ in cases of violence
against women.
67
While the UN Special Rapporteur, in her last visit to the OPT in 2016-17,
expressed her preoccupation for the traditional views of many judges in cases of domestic violence,
68
Human Rights Watch has repeatedly pointed out that most of the time, when a woman reports
abuses, authorities prioritize ‘family reputation’ and tend to ‘mediate’ or ‘solve’ the problem by
speaking with the parties or the families involved.
69
In 2003 a new penal code was drafted which criminalised domestic violence (punishable with two
years of imprisonment)
70
and sexual harassment,
71
and created specific regulations to protect women
victims of violence, including rape and sexual assault.
72
It also addressed crimes perpetrated within
the family and against children (such as incest and sexual abuse),
73
and instituted penalties for
individuals who marry before eighteen. However, due to the complicated political situation, the draft
has not yet been passed and decisions regarding domestic violence remain in the hands of judges and
police officers who often try to reconcile parties instead of punishing crimes.
74
Although from 2011, some effort has been made to reform Personal Status Law in the OPT,
problems regarding property rights, inheritance rights, marriage and divorce, guardianship, etc. still
need to be addressed as most of the laws in relation to gender equality are in contrast with art. 15
and 16 of the CEDAW.
75
In 2011, through presidential decrees in the Gaza Strip and the West Bank,
67
D. LIEVORE, Victim credibility in adult sexual assault cases. Trends and issues in crime and criminal justice, Australian Institute of
Criminology, Canberra, 2004.
68
Report of the Special Rapporteur on violence against women, cit, para. 52.
69
A Question of Security, cit.
70
Article 347.
71
Article 465.
72
Article 461.
73
Articles 462-436.
74
As I have argued, due to the political division, the Palestinian Legislative Council (PLC) in the West Bank has been
unable to pass the amendments and has remained inactive (although still in place) since 2007. From this year, laws have
passed through a presidential decree, based on art. 43 of the Palestinian Basic Law which states that, in the absence of the
PLC, legislation can be adopted through Presidential decrees and reviewed by the PLC. It is also worth noting that,
although from June 2007 until the end of 2015 140 laws were issued by presidential decree, only 2% of these decrees
concerned women’s rights: as the UN Special Rapporteur stated, «this is revealing of a normative socio-cultural structure
which places women and girls in a subordinate position to men simply because they are women». Report of the Special
Rapporteur on violence against women, cit, para. 64.
75
Article 15: «1. States Parties shall accord to women equality with men before the law.2. States Parties shall accord to
women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In
particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally
in all stages of procedure in courts and tribunals.3. States Parties agree that all contracts and all other private instruments of
any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.4.
States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons
and the freedom to choose their residence and domicile». Article 16: «1. States Parties shall take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure,
on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a
spouse and to enter into marriage only with their free and full consent;(c) The same rights and responsibilities during
marriage and at its dissolution;(d) The same rights and responsibilities as parents, irrespective of their marital status, in
matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide
freely and responsibly on the number and spacing of their children and to have access to the information, education and
means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship,
wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in
all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the
right to choose a family name, a profession and an occupation;(h) The same rights for both spouses in respect of the
ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for
a valuable consideration.2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action,
the ‘pardoning excuses’ for honour killing have been removed from the Penal Code n. 16 (1960) and
the Penal Code n. 74 of 1936 in Gaza. Article 98 of the Jordanian Penal Code has been modified to
exclude ‘honour’ as a ‘mitigating circumstance’, while article 18 of the 1936 Egyptian Penal Code has
been amended, adding the sentence «not including the murder of women on the ground of “family
honour”» at the end of the article.
76
The multiplicity of laws applied in the West Bank and the Gaza Strip, coupled with the paralysis
of the legislative system, shows that the actual laws are not in line with Human Rights and the
CEDAW. The lack of uniformity in the Palestinian legislative system (which applies to Palestinian
laws, laws from the British mandate, Jordanian and Egyptian laws, including old laws from the
Ottoman Empire) has led to discriminatory provisions towards women.
77
These provisions, although
still applied, are in contrast with the values and norms enshrined in the ICCPR and the CEDAW.
More worryingly, these provisions deny women equal access to justice. Article 26 of the ICCPR
states that «all persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status».
2. State’s response to VAW and GBV
The CEDAW requires that states «take all appropriate measures, including legislation, to modify
or abolish existing laws, regulations, customs and practices which constitute discrimination against
women».
78
States should «refrain from engaging in any act or practice of discrimination against
women and to ensure that public authorities and institutions shall act in conformity with this
obligation». States should also «take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise» and should work on eliminating traditional and
social patterns that discriminate against women.
79
Although the Palestinian criminal justice system has limited jurisdiction in the OPT (only in area
A and -partly- in area B), in recent years there have been some positive achievements in relation to
women’s equality. In 2011, in the West Bank and Gaza Strip, the application of ‘mitigating
circumstances’ for honour crimes was abolished. However, article 99, which gives discretionary
power to judges regarding ‘mitigating factors’ in honour crimes was not cancelled.
In 2008, Family Protection Units (FPUs) were established in Palestinian police stations in the
West Bank: these work in close cooperation with shelters for women victims of violence, the fifteen
specialized public prosecutors established in 2014 to investigate cases of violence against women,
80
and with the specialized public prosecutor on ‘Protecting Family from Violence established in
2016.
81
Although the establishment of the FPUs has increased women’s trust in the police, the UN
including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an
official registry compulsory». See CEDAW, cit.
76
A. AL ASHQAR, Murder of Women in Palestine under the pretext of honour. Legislation and Jurisprudence Analytical Study, United
Nations Human Rights- Office of the High Commissioner, OPT, 2014, p. 7. Available at
http://www.ohchr.org/Documents/Issues/Women/WRGS/Executive_summary_study_called_honour_killings_Palestine
.pdf.
77
Report of the Special Rapporteur on violence against women, cit, para. 63.
78
See art. 2 of the CEDAW, cit.
79
Ivi, para 5 (a).
80
Report of the Special Rapporteur on violence against women, cit, para. 50.
81
Ivi, para. 49.
Special Rapporteur noted that in many women’s residential areas there is a lack of police stations and
often women cannot afford transportation costs.
82
Indeed, many women face problems in filling
complaints at the police station due to the risk of social stigmatization.
83
Further problems are
caused by the fact that the FPUs are unable to give immediate protection to women.
84
The positive achievements obtained in the West Bank (including the creation of three shelters for
women victims of violence) have not been paralleled in Gaza, where the authority has opened some
channels of cooperation with local women’s organizations but reforms of the criminal law code have
not yet been taken into consideration. The main support to women in Gaza is given through
humanitarian and development interventions that provide services to address the problem of gender
based violence.
85
Although the PA in the West Bank and the government in force in the Gaza Strip have taken
some positive steps to fight gender based violence, much still needs to be done in order to align the
Palestinian legislative system with the principles of the CEDAW:
« [t]he Rapporteur notes […] that among the main obstacles identified by the PPS themselves are
the absence of a special law on gender-based violence, an out-dated criminal code, the absence of law
on electronic crimes and the absence of protection orders, a lack of specialized judiciary on VAW,
and a lack of use of constitutional tools and treaties in litigation by lawyers».
86
Problems of discrimination against women are still persistent in Family law and Personal Status
law, specifically in relation to child marriage, marital rape, inheritance rights and punishment of
rapists. Sexual violence also continues to be a great problem, not only because both in Gaza and in
the West Bank the PA has failed to create an environment to protect women, but also because of the
social stigmatization of women victims of violence: this stigmatization is perpetuate by the judicial
system which tries to solve family issues through non-legal means.
87
Moreover, Palestinian police
lack expertise and their tendency to recur to informal remedies is also highlighted by Human Rights
Watch, which has expressed a preoccupation with the ineffectiveness of the Palestinian police in
addressing cases related to violence against women. In fact, it is the patriarchal Palestinian tradition,
coupled with discriminatory criminal legislations, that has often led to the impunity of perpetrators
of violence against women, discouraging women to report abuses.
Another problem is the absence of guidelines and protocols for doctors: this affects the treatment
of women victims of violence as the hospital is often the first public place they attend. Indeed, the
governments in power in the OPT have failed to adequately survey the rate of GBV (the last survey
is from 2011), setting up government-run hotlines, providing guidelines to police and doctors,
reforming the criminal code, and sponsoring awareness activities to fight VAW.
88
International human rights law recognizes the state’s accountability for actions or abuses
committed by private actors in cases when the state does not protect the individual. In the CEDAW
Recommendations n. 19, the Committee points out that «states may also be responsible for private
acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish
acts of violence».
89
If states fail to protect part of their population (in this case, women), this would
amount to a discriminatory treatment which constitutes a violation of the state’s duty to guarantee
82
Report on Violence Against Women in the Context of Conflict, EuroMed Rights, 2016. Available at
http://euromedrights.org/wp-content/uploads/2015/12/EMHRN-Factsheet-VAW-Palestine-EN.pdf.
83
Report of the Special Rapporteur on violence against women, cit, para. 50.
84
Ivi, para. 49.
85
Reducing violence against women and promoting gender equality: two underused tools in bridging fragmented and divided communities and
achieving peace, United Nations Human Rights- Office of the High Commissioner, 2016. Available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20565&LangID=E
86
Report of the Special Rapporteur on violence against women, cit, para. 51.
87
Reducing violence against women vital for peace in Israel and Occupied Palestinian Territory- UN expert, UN News Centre, 2016.
Available at http://www.un.org/apps/news/story.asp?NewsID=55157#.WX2V2Ih97IU
88
A Question of Security, cit.
89
CEDAW Committee, General recommendation 19, Violence Against Women, UN Doc A/47/38, para 9.
the protection of all individuals. CEDAW also identifies the key elements to fight violence against
women, which should be addressed by Palestinian governments in the West Bank and Gaza Strip.
«a)Effective legal measures, including penal sanctions, civil remedies and compensatory
provisions to protect women against all kinds of violence, including inter alia violence and abuse in
the family, sexual assault and sexual harassment in the workplace; b)Preventive measures, including
public information and education programmes to change attitudes concerning the roles and status of
men and women; c)Protective measures, including refuges, counseling, rehabilitation and support
services for women who are the victims of violence or who are at risk of violence».
90
Despite the various recommendations and the efforts of Palestinian civil society to change the
penal code and harmonise it with international conventions, the unwillingness of the political
apparatus acting within a context of war and occupation has only led to a worsening of women’s
conditions in the West Bank and Gaza Strip.
3. Women’s Rights, legislative reforms and the Israeli Military Occupation
The impact of the Israeli military occupation on women’s rights cannot be underestimated.
Women’s rights are violated with impunity by Israeli forces and settlers and military attacks,
91
restrictions on education,
92
restriction of movement, forced evictions
93
and economic dependency
94
are becoming a daily reality for women. It is estimated that in 2014, 71.2% of women from Jerusalem
and 91.5% of women who live in the West Bank near settlements have experienced various forms of
violence from settlers and Israeli forces. It is also estimated that Palestinian women in Israeli jails
experience various forms of violence (verbal harassment reaches 88.5%).
95
In the 2014 operation
Protective Edge in Gaza, 257 women were killed and 2088 wounded.
96
Indeed, the many forms of
psychological and sexual violence to which Palestinian women are subjected at the Israeli check
points have drastically reduced women’s freedom of movement, and arbitrary arrests, house
demolitions and the consequent lack of access to maternal and health services have worsened
women’s conditions and their access to fundamental rights.
Scholars have found a correlation between the increase of VAW and violent conflicts:
97
often, in
fact, rape, harassment and other forms of sexual violence are used to destroy social order within a
general climate of impunity and violence. In this sense, the Israeli violence and military occupation
has strengthened patriarchal values and, often, the violence experienced by men turns into acts of
violence committed within the family:
98
war violence (in all the forms it takes) increases the level of
90
Ivi, para 24 (t).
91
Through Women’s Eyes: A PCHR Report on the Gender-Specific Consequences of Operation Cast Lead, PCHR, 2009. Available at
www.pchrgaza.org/files/Reports/English/pdf_spec/through-women's%20_eyes.pdf.
92
Behind the Wall: Voices of Women from the Seam Zone, WCLAC, 201. Available at www.wclac.org//ihl/userfiles/file/life-
behind-thewall.pdf.
93
Forced Evictions: Assessing the Impact on Palestinian Women in East Jerusalem, WCLAC, 2010. Available at
www.wclac.org/english/etemplate.php?id=25.
94
Palestinian Human Development Report: Investing in Human Security for a Future State, UNDP, 2010. Available at
http://www.undp.ps/en/newsroom/publications/pdf/other/phdreng.pdf.
95
MIFTAH discusses findings on violations against women in the West Bank, MIFTAH, 2015. Available at
http://www.miftah.org/Display.cfm?DocId=26315&CategoryId=36.
96
Occupied Palestinian Territory: Gaza Emergency Situation Report, OCHA, 2014. Available at https://www.
ochaopt.org/documents/ocha_opt_sitrep_04_09_2014.pdf.
97
E. J. WOOD, Armed Groups and Sexual Violence: When Is Wartime Rape Rare? in Politics and Society 37 (1), 2009, p. 131-161; E.
J. WOOD, Variation in Sexual Violence during War, in Politics and Society 34.3, 2006, p. 307-341.
98
H. ROUGHT-BROOKS, S. DUAIBIS and S. HUSSEIN, Palestinian women: Caught in the cross fire between occupation and patriarchy
in Feminist Formations, 22.3, 2010, p.124-145; S. HAJ, Palestinian women and patriarchal relations, in Signs: Journal of Women in
Culture and Society, 17.4, 1992, p. 761-778; C. CLARK, S. EVERSON-ROSE, S.F. SUGLIA, R. BTOUSH, A. ALONSO, and M. M.
poverty and health problems develop, caused by malnutrition and poor sanitation,
99
while people
become vulnerable to additional cycles of violence. The impact of the Israeli occupation has also
changed marriage and fertility behaviours:
100
in the case, the conflict has led to an increase of
women’s fertility as women’s body has become a useful tool to advance ethnic or religious groups.
The discourse about Human Rights and Women’s Rights in the OPT is constrained not only by the
violence of the occupation but also by the complex geo-political fragmentation of the OPT following
the ‘Oslo Accords’ which has restricted the PA’s ability to impose laws in all the Palestinian territory
and thereby to define Palestinian citizenship: as a consequence, various forms of VAW and GBV
take place and women’s access to justice is often difficult, if not impossible.
101
An example is the
Palestinian city of Hebron, in the West Bank. Hebron is one of the most traditional and conservative
cities in Palestine and often ‘family matters’ are decided within the family or the community. In the
middle of the city, an area (called H2) is occupied by Israeli settlers and controlled by Israeli forces,
although many Palestinians still live in their houses in the area.
102
Human Rights Watch has reported
that one of the problems faced by the police is that Palestinians fleeing from the Palestinian law go
into these ‘off-limits’ areas where Israelis control security. Indeed, it is also complicated for women
living in H2 to reach the Palestinian police stations which are not only located outside the area
surrounded by Israeli checkpoints, but they also have no jurisdiction in the H2 area.
103
The UN
Special Rapporteur on violence against women, has expressed concerns regarding the effects of legal
and governmental fragmentation on women: «the occupation is a real obstacle to the fulfilment of
the state’s due diligence obligation to prevent violence against women in areas where it has not full
jurisdiction, because of the fragmentation of the areas under different control […] the
prolonged occupation has had differentiated impact on women and girls, in connection with
traditional and embedded patriarchal social norms».
104
Human Rights Watch has also highlighted that
Palestinian women living in Israeli controlled areas are reluctant to report abuses to the occupying
power, and that Israel, contrary to its duty to provide protective policies, has not provided any
service to protect women victims of violence and GBV crimes.
105
Another example is the matter of
child custody. Although, based on the Palestinian Constitution, women and men have equal rights to
apply for custody, the implementation of custody rulings that involve movement between the West
Bank and the Gaza Strip is difficult as this would require an Israeli permit for family reunification
which is almost impossible to obtain.
106
Likewise, the PA can pass legislation that protects women
from domestic violence, but it would not have any value in East Jerusalem or in the Palestinian areas
HAJ-YAHIA, Association between exposure to political violence and intimate-partner violence in the occupied Palestinian territory: a cross-
sectional study, in The Lancet, 375.9711, 2010, p. 310-316.
99
D. TOLIN, E. B. FOA, Sex Differences in Trauma and Post-Traumatic Stress Disorder: A Quantitative Review of 25 Years of Research,
in Psychological Bulletin 132.6, 2006, p. 959-992; H. A. GHOBARAH, P. HUTH, and B. RUSSETT, Civil wars kill and maim people
long after the shooting stops in American Political Science Review, 97.2, 2003, p.189-202.
100
A. JAYARAMAN, T. GEBRESELASSIE, and S. CHANDRASEKHAR, Effect of conflict on age at marriage and age at first birth in
Rwanda, in Population Research and Policy Review, 28.5, 2009, p.551.
101
Access Denied- Palestinian Women’s Access to Justice in the West Bank of the occupied Palestinian territory, UN Women Report,
2014. Available at http://palestine.unwomen.org/~/media/field%20office%20palestine/attachments/
publications/2014/access%20denied_en.pdf.
102
Hebron is inhabited by 150.000 Palestinians (roughly) and 35.000 of those live in area H2. In the same area live also
around 500 settlers (the only one who live in the very heart of a Palestinian city). According to the Hebron security
agreements (1997), Israel is responsible to maintain the security in area H2.
103
A Question of Security, cit. Human Rights Watch interview with Awni Samari, Head of Hebron police, Hebron 2095.
104
UN expert: When Palestinian men beat their wives, cit.
105
Human Right Watch’s interview with Maha Abu-Dayyeh, director of the Women’s Center for Legal Aid and Counseling
(WCLAC), East Jerusalem, nov 7, 2005.A Questtion of Security. cit.
106
Family Reunification, MIFTAH, 2017. Available at http://www.miftah.org/Display.cfm?DocId=14464&CategoryId=4.
under Israeli control. In other words, while the PA has the authority to enact laws, those laws
become difficult to apply in the Palestinian Territories and, therefore, they lose any meaning.
107
Based on International Humanitarian Law, Israel, as the occupying power, has the duty to protect
Palestinian women in the OPT from VAW and to advance the principles enshrined in the CEDAW
and other relevant international conventions concerning women’s rights. The reality, however, seems
to be quite different and the Israeli occupation is further deteriorating the application of women’s
rights in the OPT.
4. Conclusion
In her conclusive remarks, the UN Special Rapporteur states that although VAW in Palestine is
linked to the prolonged occupation, the PAs in the OPT carry responsibility for the status of
Palestinian women: «the occupation does not exonerate the State of Palestine from its due human
rights obligation to prevent, investigate, punish and provide remedies for acts of gender-based
violence in the areas and for persons under its jurisdiction or effective control. The de facto
authorities in Gaza also bear human rights responsibilities, given their exercise of government-like
functions and territorial control».
108
The special Rapporteur refers to the fact that although some positive steps have been taken, the
reforms drafted by the governments in relation to the application of the principles enshrined in the
CEDAW have never been implemented
109
and many laws remain particularly discriminatory towards
women. Those laws seem also to be in contrast with the Palestinian Basic Law promulgated in 2003
and amended in 2005 which contains the basic principles of non-discrimination, such as the principle
of equality before the law without discrimination based on sex, colour, race, etc.
110
However,
Palestinian Basic Law still presents important limitations. In particular, it fails to establish important
social rights to eradicate gender inequality (such as the social insurance system,
111
Shari’a as a source
of legislation
112
which is often interpreted to undermine women’s rights in the family, etc.).
113
Many
laws applied in the West Bank and Gaza Strip (particularly norms of the Jordanian and Egyptian
penal codes) remain discriminatory towards women. Marriage age, the guardianship clause, lack of
access to divorce and abortion and many other issues remain unresolved and Palestinian women
have little access to a juridical system able to protect them.
114
In fact, it is often the legal system itself
that reinforces the idea of women’s subordination, denying them their right of self-determination.
115
In this sense, the law applied in the OPT in relation to VAW does not act to deter violence or to
107
T. KELLY, Law, Culture and Access to Justice under the Palestinian National Authority, in Development and Change 36.5, 2005, p.
865-886.
108
Report of the Special Rapporteur on violence against women, cit, para. 11.
109
A. MELHEM, Will new Palestinian agency be enough to stop violence against women?, Al-Monitor, 2016. Available at
http://www.al-monitor.com/pulse/originals/2016/06/palestinian-observatory-violence-against-women.html.
110
Palestinian Basic Law (amended 2003) cit. articles 9 33.
111
Ivi, article 22.
112
Ivi, Article 4.
113
The significance of the Palestinian Basic Law for women’s rights in the OPT is twofold: it empowers the High Court to
strike down unconstitutional legislation, including discriminatory legislation. In addition, although judges in the lower
courts cannot decide upon the constitutionality of the law, they are obligated to take the principles of the Palestinian Basic
Law including the principles of equality and non-discrimination into account when interpreting legislation. In practice,
however, these judicial powers which have potentially wide-ranging implications for human rights in the OPT are not
being employed to take women’s rights forward. A study finds out that judgments do not address the principle of equality
enshrined in the Palestinian Basic Law in their decisions. Hence, the Palestinian Basic Law is not the ultimate guarantor of
women’s rights. See K. NASER-HUSSEIN, Review of Gender in Palestinian Legislation on Women’s Political Participation, Palestinian
Women’s Centre for Research and Documentation 2009.
114
Report of the Special Rapporteur on violence against women, cit, para. 58.
115
Will new Palestinian agency be enough to stop violence against women?, cit.
punish the perpetrators of abuses, but it silently allows certain violent acts to be perpetrated with
impunity.
116
In order to solve the problem of VAW in the OPT, it is necessary that the competent authorities
adopt a zero-tolerance policy towards the problem as failing to protect women will further erode
faith in the Palestinian legislative system and its effectiveness.
117
It is also necessary to establish an
independent authority that monitors the violation of women’s rights in the OPT and the measures
taken by judges and police to address specific cases of VAW. In fact, as I have argued, one of the
main problems is that although there exist some legal provisions that protect women from gender
based violence crimes, there is a gap between some legal texts and the reality experienced by many
women in the OPT. In other words, although some legal texts stress gender equality, this is not
mirrored in the rights accorded to women in the country.
118
The harmonization of the Palestinian legal system based on international law and conventions is
therefore necessary. Diverse legal systems and a wide use of judicial discretionary opinion have
subjected women to un-fixed and often patriarchal rules, limiting their access to justice and their
right to protection.
119
Indeed, it is necessary to reform Personal Status Law, starting by raising the
minimum age of marriage, restricting the practice of polygamy, reviewing child custody regulations,
expanding the grounds on which women can sue for divorce, revoking the requirement that a
woman should obtain the consent of a male relative to marry and the testimony of a woman in the
Shari’a courts should be considered equal to that of men. Also, the criminal law system should be
revised and unified in conformity with human rights and international standards to protect women
from violence. Important reforms are urgently needed, such as the criminalization of marital rape
and harassment; the establishment of specific procedures for cases of sexual abuse and domestic
violence;
120
the creation of a new offence for domestic violence and on sexual harassment crimes; the
increase of penalties for people who commit violence against women etc.
121
In essence, analysis of the legal status of women in the OPT shows that the laws and regulations
applied to cases of VAW and GBV depart from human rights norms and the CEDAW in several
areas. The complex political and legal context, coupled with a clear unwillingness by the authorities
to address the problem of VAW reveals that aligning Palestinian Personal Status law to international
norms will not be an easy task. The history of law reforms on gender related issues in the OPT
shows that, although a consensus over the need to reform Family law and Personal Status law has
been reached, important differences have emerged in the designing of the law, further paralysing the
legislative system.
122
Although gender equality has become one of the main foci of international engagement in
Palestine, in a traditional and conservative society such as Palestine’s, gender equality issues are often
perceived as an illegitimate cultural foreign imposition. In Palestinian society, patriarchal norms and a
116
Jordanian Penal Law n. 16 (1960) and Egyptian Penal Law n. 58 (1937) are applied in the West Bank and Gaza,
respectively.
117
A Question of Security, cit.
118
Will new Palestinian agency be enough to stop violence against women?, cit.
119
Ibidem.
120
According to the following report, justice sector officials themselves have found existing procedures inadequate and
incapable of addressing the crime of sexual abuse. See K. NASEFFR HUSSEIN, Women Police and Their Role in Protecting Women
from Violence, Women’s Centre for Research and Documentation, 2009.
121
The Women’s Rights Charter also calls for greater legal flexibility with regard to women who seek to voluntarily
terminate a pregnancy.
122
For some, the main problem in the achievement of gender equality is that the law does not fully observe the principles
of Sharia law, while others believe that Palestinian Basic Law should be reformed based on the principle of gender equality.
Proponents of these positions call for the establishment of a Civil Family Law to replace the current faith-based laws. See I.
JAD, P. JOHNSON and R. GIACAMAN, Gender and Citizenship under the Palestinian Authority, in Gender and Citizenship in the Middle
East, edited by S. Joseph, Syracuse University Press, New York, 2000.
wide use of gender stereotypes still persist.
123
It is enough to look at media coverage of VAW cases
to understand the unbalanced, discriminatory and stereotyped attitude towards VAW. Al-Quds, the
largest newspaper in the OPT, reported VAW cases as follows: «in the town of Tubas, a woman (A-
KH) of age 36 was found murdered under mysterious circumstances, the body was found near the
squatter colonist Mikhola near Tubas»; «in Tarqumiya near Hebron, a woman (K-A) of age 24 was
found dead under mysterious circumstances»; «the body of D-S of age 37 from the village of Burkin
near Jenin was found in a well»; «the woman (W-G) from Hebron was found dead, the preliminary
investigations show that she killed herself».
124
Taking into consideration the impact of patriarchal values
125
and the complex political situation, it
is possible to affirm that it is not enough, when analysing GBV and VAW in the OPT, to place an
emphasis on law reforms
126
based on the assumption that when courts and the law operate in an
efficient manner women will be able to realise their rights.
127
. While strengthening the legal system
and pushing for legal reforms and increased awareness of women’s rights is important, it is
impossible to separate the advancement of women’s rights from the political, legal and cultural
context of the area.
128
Therefore, in order to assure that newly enacted legislation is effective, it is
necessary to look beyond legal jurisprudence and to consider the compatibility of the proposed
reforms with the political, legal, cultural and economic factors in the OPT, where legal reforms
should emerge as a part of the process to advance women’s rights and not as the entire process.
129
As
Buyukgul states, women’s rights are not only concerned with gender equality; they are primarily
about «abolishing the innate hegemonic undercurrents of power and control. The subordination of
women is one of these undercurrents, and it interconnects and overlaps with political oppression and
other forms of exploitation based on religion,» culture and patriarchy.
130
123
In school books women are portrayed as mothers and wives, cooking and sewing or working as nurses, teachers,
secretaries, while men are presented as doctors, mechanics and athletes. See I. JAD, The post-Oslo Palestine and gendering
Palestinian citizenship in Ethnicities 11.3, 2011, p. 360-372.
124
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Ivi.
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Law, Culture and Access to Justice under the Palestinian National Authority, in Development and Change, cit.
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Ivi.
128
Ivi.
129
J. FAUNDEZ, Legal Reform in Developing and Transition Countries - Making Haste Slowly, in Law, Social Justice and Global
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