Incorporating the Principles of Gender Equality into the Penal Code of Palestine to Combat Honour-based Violence
Ayah Omran
A thesis in fulfillment of the requirements for the degree of Doctor of Philosophy
School of Law
Faculty of Law
August 2018
Contents
Acknowledgements ...... vii
Abstract ...... ix
List of Abbreviations ...... xi
Glossary of Arabic Terms ...... xii
Note on Transliteration ...... xiii
Chapter One ...... 1
Introduction to the Research Project ...... 1
1. Introduction ...... 1
2. The Theoretical Framework and the Significance of the Thesis ...... 2
3. The Scope of the Thesis ...... 6
4. Obstacles and Limitations ...... 8
5. The Original Contribution to Legal Scholarship ...... 8
6. The Literature Review ...... 9
6.1 Reform Attempts ...... 9
6.2 Honour-based Violence in the International Context ...... 14
6.3 Honour, the Formal Justice System and the Private Sphere ...... 17
6.4 Honour in Islamic Shari’a Law ...... 19
6.5 Honour in Social Norms ...... 22
6.6 Honour Violence in Nationalism Projects ...... 24
6.7 Other Forms of Honour Violence in the Penal Code No. (16) of 1960 ...... 27
7. Research Questions ...... 28
8. The Methodological Approach...... 29
9. The Outline of the Thesis ...... 30
Chapter Two...... 32
The Legal Dimensions of the Honour-based Violence Problem ...... 32
1. Introduction ...... 32
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2. Introduction to the Honour-based Violence Problem ...... 33
2.1 Defining Honour: A Historical Overview ...... 34
2.2 The Evolution of the Concept of Honour Violence in Islamic Legal Jurisprudence . 38
2.3 Attributes of Traditional Honour Crimes ...... 43
2.4 Attributes of Crimes of Passion ...... 45
2.5 Honour in the Arab Penal Codes: The Legal Honour Codes ...... 47
2.6 Locating Honour in the Legal Process of the West Bank: The Legitimization of Honour-based Violence ...... 49
3. Conceptualizing Honour-based Violence...... 62
3.1 Honour Violence as Cultural-based Violence: The Unidimensional Approach...... 62
3.2 Honour-based Violence as a Subspecies of Gender-based Violence: The Universal Approach ...... 63
3.3 The Consequences of Conceptualizing Honour-based Violence as a Form of Gender- based Violence or as a Form of Cultural-based Violence ...... 73
3.4 Conceptualizing Honour-based Violence in Palestine ...... 74
4. Conclusion ...... 76
Chapter Three...... 78
The Meaning of Gender Equality in the Process of Combating Honour-based Violence in Palestine ...... 78
1. Introduction ...... 78
2. The Meanings of Gender Equality in Traditional Feminist Theory ...... 79
2.1 The Sameness Approach and the Affirmative Action of Liberal Feminists ...... 79
2.2 Demolishing the Institution of Family and the Differences Approach of the Radical Feminists ...... 82
2.3 The Public/Private Dichotomy and the Distribution of Power Approaches of the Socialist Feminists ...... 84
3. The Obstacles to Applying Traditional Feminist Understandings of Gender Equality within the Palestinian Context...... 89
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3.1 The Problems of the Liberal Approach ...... 89
3.2 The Problems of the Radical Approach ...... 93
3.3 The Problems of the Socialist Feminism Approach ...... 95
4. The Theory of Gender Equality to Combat Honour-based Violence in Palestine ...... 96
5. Conclusion ...... 105
Chapter Four ...... 107
Understanding Structural Intersectionality in the Palestinian Social Structure ...... 107
1. Introduction ...... 107
2. Introduction to the Analysis Method of the Intersectionality Approach ...... 108
2.1 Intersectionality Levels of Analysis ...... 108
2.2 The Arenas of Intersectionality ...... 110
2.3 Definitions of the Main Social Categories/Divisions of Intersectionality ...... 112
3. The Application of the Intersectionality Approach to Palestine ...... 116
3.1 Identifying the Social Ontologies (Categories/ Divisions) in Palestine ...... 116
3.2 Defining the Meaning of the Social Categories in the Palestinian Context ...... 117
3.3 The Overlapping Relationship Between the Social Divisions ...... 132
3.4 The Intersection of Social Divisions within the Co-Existing Nationalisms Projects ...... 135
4. Conclusion ...... 136
Chapter Five ...... 137
Honour-based Violence in the Palestinian Legislative Process ...... 137
1. Introduction ...... 137
2. Honour Violence in the Post-Colonial Nationalism Project: The Legislative Activity of the Jordanian State Nationalism Project...... 139
2.1 The Manifestation of Honour-based Violence in the Penal Code No. (16) of 1960 141
2.2 The Pillars of the Punitive Policy of the Penal Code No. (16) of 1960: The Legislative Philosophy Concerning Sexual Crimes ...... 159
2.3 The Formation of Sexual Crime Provisions in the Penal Code No. (16) of 1960 .... 160
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3. Honour Violence in the Palestinian/Israeli Conflict Nationalism Projects (The Palestinian Liberation Organization Nationalism Project/The Israeli Zionism Nationalism Project) ...... 167
3.1 The Palestinian Liberation Organization Nationalism Project ...... 168
3.2 Honour Violence in Jewish State Nationalism: The Dimension of Ethnicity ...... 181
4. Palestinian State Nationalism ...... 184
4.1 Insight into the Draft of the Future Palestinian Constitution...... 187
4.2 Analysis of the Sexual Crimes Provisions in the Palestinian Draft of Penal Code of 2011 ...... 190
4.3 The Pillars of the Punitive Policy in the Palestinian Draft of the Penal Code of 2011 ...... 193
5. Conclusion ...... 193
Chapter Six...... 195
Honour-based Violence in the Palestinian Judicial Process ...... 195
1. Introduction ...... 195
2. Studying Judicial Attitudes Regarding the Criminal Law’s Response to Honour Violence ...... 196
2.1 The Methodology ...... 196
2.2 The Sample ...... 197
2.3 The Transcription Process ...... 199
2.4 The Main Themes that Emerged from Thematic Analysis of the Interviews ...... 200
3. Judicial Practices Regarding Criminal Law’s Response to Honour Violence: Insights from Decided Cases ...... 221
3.1 Transforming General Provisions into Private Provisions in Honour Killing Cases223
3.2 Changing the Characterization of other Sexual Crimes ...... 236
3.3 Narrowing the Circle of Criminal Liability in Cases of Honour Killing...... 237
3.4 Loose Interpretation of Self-Defence ...... 237
4. Discussion of Qualitative Findings ...... 238
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4.1 The Summary of Findings: ...... 238
4.2 The Intersection of Nationalism Projects and Judicial Practice ...... 241
5. Conclusion ...... 243
Chapter Seven ...... 244
Legislative and Judicial Reform for Combating Honour-based Violence ...... 244
1. Introduction ...... 244
2. Legislative-based Reform ...... 245
2.1 The Penal Code ...... 246
2.2 The Future Palestinian Constitution: The Design of the Future Gender-Oriented Palestinian Constitution ...... 249
2.3 The Criminal Procedures Law and the Other Legal Helping Tools ...... 250
3. Judicial Reform ...... 251
3.1 The Role of the Court of Cassation in the Legal Reform Process ...... 252
3.2 The Impacts of Legal Education ...... 257
3.3 The Judicial Complementary Role of Supporting Legislative Reform ...... 262
4. Conclusion ...... 265
Chapter Eight ...... 266
Conclusion ...... 266
1. Introduction ...... 266
2. The Findings of Chapter Two ...... 266
3. The Findings of Chapter Three ...... 267
4. The Findings of Chapter Four ...... 268
5. The Findings of Chapter Five...... 268
6. The Findings of Chapter Six ...... 269
7. The Findings of Chapter Seven ...... 272
8. Final Observations...... 273
Appendix A: ...... 274
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The Interview Protocol ...... 274
Appendix B: ...... 277
Ethics Approval ...... 277
Appendix C: ...... 279
Invitation Letter ...... 279
Appendix D: ...... 280
Consent Form ...... 280
Appendix E: ...... 285
Approval Letter from the High Judicial Council ...... 285
Bibliography ...... 286
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Acknowledgements
Obtaining a PhD scholarship is a life changing event, where the candidate leaves his/her comfort zone behind and gets ready to embark on a journey filled with uncertainty. Such an opportunity does not often present itself to a Palestinian woman, so I decided to leave everything behind and accept the challenge of studying at UNSW.
When the plane landed at Sydney International Airport on a cold July morning, I thought that all the difficulties I had envisaged faded away. Little did I know that there was a huge journey ahead of me. On this journey I had to struggle with a chronic disease as well as a very painful divorce. As a result, I could not achieve much in the first two years of my candidature. These struggles gave me many moments of self-doubt as everything seemed too much for me to handle. It was during these moments of despair that the people I would like to thank the most in this acknowledgement helped me to see the light at the end of the tunnel.
I would like to begin by thanking Prof. Luke McNamara and Dr. Anthony Billingsely, my supervisors who generously took on my case after I was abandoned by my previous ones, whose guidance and support has made all the difference. Their patience and understanding transformed my project from a case I thought destined fail into the work you will read shortly. I am left speechless whenever I try to find the right words to thank these two brilliant professors and amazing human beings. I can only say that their influence will stay with me until the end. I would also like to thank the members of my panel: Prof. Julie Stubbs, Prof. Andrew Byrnes, Prof. Sarah Williams and Prof. Gary Edmond for their constant support and their extremely helpful feedback. Last but not the least I want to express my sincere gratitude to Jenny Jarret, the administrative officer in the HDR department, for her great support in making my PhD journey a lot smoother.
On this journey my closest companions have been my family. My parents and my two siblings Osama and Islam never stopped believing in me even when I was experiencing failure on so many different levels. My mother made sure to give me all the support I needed after I was abandoned by my ex-husband and encouraged me to return back to Australia to resume chasing my dreams despite the pain of my divorce. Back in Australia, two years after my divorce I was pleasantly surprised meeting my husband Jacob Randall and his great family. Jacob has been a great aid during this journey, he was a great editor and helped me
vii with the technical side of combining this thesis. Above all, Jacob helped me regain the self- esteem I had lost in an abusive relationship. I cannot find enough words to express my gratitude to my in-laws Graham, Kelly and Miriam Randall. Thank you for giving me a great and loving second family. Your love and care have made all the difference.
I would also like to thank my dear friends Elham Zakari, Donna Kocherry, Neda Abadi and Marizeh Monfared, for their friendship which has been a great support. My sincere gratitude also goes to Fr. Tony Caruana, Fr. Peter Guy, Fr. Martin Wilson, Fr. Denis Uhr, Br. John Frith, Fr. John Bossman, Br. Greg McCann and the MSC community for opening their hearts and home to international students. Thank you for the great time and memories that us students have had together because of you.
My sincere thanks go out to the Australian Government, AusAid, Prof. Hal Wootten, the staff of AusAid and the University of New South Wales for their constant support.
Finally, I want to thank Ayah, the depressed and sick woman who managed to drag herself out of bed every single day despite the pain. I want to thank that woman who did not let me down and remained hopeful even through the bleakest moments.
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Abstract
Honour-based violence is deemed to be an extreme manifestation of women’s rights violations throughout the Arab world including Palestine. The connection between the honour phenomenon and Islamic shari’a, along with Arab conservative tradition, raises controversy surrounding the genuine origin of this phenomenon and how to combat it.
Understanding the phenomenon and how to combat it require taking into account two considerations. First, honour-based violence is a form of gender-based violence that must be combated with the principles of gender equality. Accordingly, the thesis illustrates the prominent approaches to gender equality in the legal process. Highlighting the shortcomings of these approaches shows that both the sameness and differences approaches provide for solutions, rather than providing frameworks to analyse the causes of the problem. However, many contemporary feminist scholars, such as post-colonial feminist scholars, emphasize the “universal sisterhood” while understanding the specific cultural context of each group of women.
Second, it is essential to understand the unique conditions of Palestinian society and the role of honour in the Palestinian social structure. This can be achieved through an intersectionality approach. This approach focuses on intersecting specific social divisions (mainly gender, class, and ethnicity); and the impact of this intersection on the specific phenomenon of gender-based violence. The legitimization of honour violence in the legal process is studied through understanding the intersection of gender, age, ethnicity, and class within the political agendas of the various nationalism projects. The main nationalism projects subject to analysis are the ones which have shaped the legal process in the West Bank: the Jordanian nationalism project that shaped the applied Penal Code No. (16) of 1960 and represents a post-colonial nationalism project, the Palestinian Liberation Organization’s nationalism project and the Israeli nationalism project which represent conflict nationalism projects; and the Palestinian state nationalism project which represents a post-conflict nationalism project. The Palestinian and the Israeli projects have shaped the Palestinian draft of the Penal Code of 2011. In other words, understanding the reasons why honour violence is entrenched in the Palestinian legal process comes through analysing the intersection of gender, class, age and ethnicity within post-colonial, conflict and post-conflict nationalism projects.
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This thesis seeks to answer the main research question which is: How does the legal system in Palestine incorporate principles of gender equality into the Penal Code to combat honour- based violence? The following sub-questions are designed to help answering the main research question: What are the legal dimensions of the problem of honour-based violence? What is the meaning of gender equality in the context of combating honour-based violence in Palestine? What are the manifestations of intersectionality in the Palestinian social structure that are relevant to understanding and addressing honour-based violence? Why and how is the Palestinian legislative process affected by the intersectionality of specific social divisions? What are the stages of the evolution of the concept of honour as a sign of loyalty in the legislative process? Why and how is the Palestinian judicial process affected by the intersectionality of specific social divisions? What is the nature of the relationship between the judiciary and the legislator in entrenching honour-based violence? What legal reforms can contribute to a solution?
Answering these questions highlights the stages of honour’s evolution as a sign of loyalty that persists in the legal process and reflect the complicit relationship between judges and legislators to entrench honour-based violence in the Palestinian legal system. This understanding is the basis of the suggested reform mechanisms.
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List of Abbreviations
UN: United Nations
NGO: Non-Governmental Organization
WELAC: Women’s Centre for Legal Aid and Counselling
CEDAW: Convention on the Elimination of All Forms of Discrimination against Women.
PA: Palestinian Authority
PLO: Palestinian Liberation Organization
ICCPR: International Covenant on Civil and Political Rights
ICESCR: International Covenant on Economic, Social and Cultural Rights
UNDP: United Nations Development Programme
USA: United States of America
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Glossary of Arabic Term
Quran: The holy book of Islam revealed by Allah to the Prophet Muhmmad (PBUH)
Shari’a: Islamic Law
Ijtihad: The reasoning of jurists
Sharaf: Honour
Zina: Adultery
Hadd: The punishment that the limit of which is defined by the Quran
Qisas: The exact retaliation
Tazir: The punishment that is left to the discretion of the judge
Hadith: The prophet’s saying
Hanafi: A school of Islamic thought
Fatwa: Legal opinion
Suuni: Derived from the traditions of the prophet Muhmmad (PBUH)
Diya: Blood money
Al-Tanzimat: The process of transplanting Western legislations into
Intifada: The Palestinian Uprising
Hamas: The Islamic resistance movement
Fatah: The Palestinian resistance movement
Al-ard qabal Al-ard: Land before honour
Umma: National community
Misr: Egypt
Um al-Asirah: Mother of a political female prisoner
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Note on Transliteration
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Chapter One
Introduction to the Research Project
1. Introduction
Honour-based violence is deemed to be an extreme manifestation of women’s rights violations throughout the Arab world including Palestine.1 This violence is defined as “a collection of practices which are used to control behaviour and exert power within families to protect perceived cultural beliefs. Such violence can occur when perpetrators perceive that an individual has shamed the family by breaking their honour code”.2
The connection between the honour phenomenon and Islamic shari’a, along with Arab conservative tradition, raises controversy surrounding the genuine origin of this phenomenon and how to combat it. Moreover, in Palestine, human rights defenders and feminists, in their battle to combat honour violence, are facing the challenge of the impact of the legislative heritage of the succession of political regimes. This is in addition to facing the challenges of occupation and the geographic division between the West Bank and the Gaza Strip.
According to Palestinian law reformers, the deterioration of the status of women’s rights and its effect on the applied legislations have always been a cause for concern. However, the seriousness of this deterioration varies from one law to another. The criminal framework, mainly the Penal Code, is one of the most important objectives of the legislative reform process, since it provides many serious violations against women’s rights, especially the deeply rooted concept of honour. Therefore, since the mid-90s, many drafts of a new Penal Code have been prepared. However, none have
1 Women in Palestine are facing different forms of gender-based discrimination, such as forced marriages and the deprivation of their inheritance rights. Abeer Ismaeel, Haq Al-Nisa’ Fi Mirath Dae’ Li Ajal Gheer Mosama (30/3/2019)
As a result of the impossibility of promulgating a new Penal Code, the inherited Penal Codes remain in force. These legislations are: the Jordanian Penal Code No. (16) of 1960 which is applied in the West Bank and influenced by the Ottoman Penal Code of 1858. This is in addition to the British Mandate Penal Code No. (74) of 1936 which was modified by the Egyptian Administration and is still applied in the Gaza Strip;4 and the Israeli military orders in criminal matters.5 The honour concept is embodied in these legislations, so one can claim that it is normalized and legitimized in and by the legal process.
Understanding the roots of the honour-based violence phenomenon and the reasons why it is legitimized in the legal process are the main factors that triggered this research project. This thesis argues that combating honour-based violence in the legal process requires understanding the impacts of social, religious and political factors on the formation of the legal provisions subject to analysis. This understanding is arrived at through an application of the intersectionality approach which is based on women’s universal sisterhood combined with studying the particular aspects of each culture.
2. The Theoretical Framework and the Significance of the Thesis
Palestinian society has witnessed many patterns of imbalance between the two gender groups in all of life’s aspects, and the legal framework of Palestine protects and legitimizes this imbalance. Thus, the disparity between the two gender groups is settled as a matter of fact in law; and has become an immutable concept. The proliferation of
3 Ahmad Barak, Nahwa Qanoon Iqabi Mowhad w Asri Li Bilad Arabia (31/8/2013)
Moreover, after the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) entered into force in the early 1980s, principles of gender equality became prevalent and incorporated into human rights standards and frameworks. As a result, law reformers have sought to incorporate these principles into the current Palestinian criminal framework as a tool to combat honour-based violence in the belief that legal reform is the first step to establishing comprehensive reform in this arena. The dialectic issue of incorporating principles of gender equality into the Penal Code to combat honour-based violence raises social controversy. This social controversy impedes the work of law reformers and feminists who are experiencing all kinds of obstacles in achieving their goal of changing legislations.
The Palestinian experience with several unsuccessful attempts to combat honour-based violence is shared with other Arab countries. For instance, in Jordan, Article (340) of the Penal Code, which regulates honour killing, was modified in 2001.6 The modification provided for superseding the exempting excuse and adding a new clause that gives the wife the privilege to also benefit from the mitigated penalty, if she kills her husband on honour grounds exactly like the rule applied to men. In other words, Article (340) became more passion-based as is explained in Chapter Two. Law reformers and feminists considered this legal change a victory and a quantum leap toward combating honour crimes. However, the changes have proven to be merely “symbolic” with no tangible results on the ground. That is, the number of victims has not decreased, and women (wives) have never actually benefited from the mitigated sentence. Moreover, Jordanian judges persistently find loopholes, such as applying Article (98), to enable the application of the traditional honour code for male defendants.7
6 Catherine Warrick, “The Vanishing Victim: Criminal Law and Gender in Jordan” (2005) 39(2) Law and Society Review 315, 328. 7 Ibid, 337-338. 3
The failure of the Palestinian and Jordanian authorities in establishing law reform raises many important questions related to reformers’ perceptions of the process of legal change, and of gender equality principles as tools for change. Obviously, both experiences lacked maturity and a deep understanding of gender equality principles and their implication for criminal law. Chapter Three of this thesis will explore this issue in detail. There are three different approaches to defining the essence of gender equality: the “differences” approach which highlights the differences between the two gender groups in order to give women special protection; the “sameness” approach which undermines gender disparities and justifies the same treatment for the two sexes;8 and the distribution of power equally between the two sexes, which means that “the path to gender equality does not lie in either ignoring or glorifying innate differences between men and women, it lies in eradicating society’s use of gender differences to keep women in an inferior political status”.9
Despite the differences between the approaches of defining what gender equality looks like, some scholars, such as Roberts agree that the final goal is to have a criminal law with a feminist vision rather than just removing the articles that prejudice women. In order to achieve this goal, it is necessary to understand the factors that transformed criminal law into a tool used to marginalize women for the sake of protecting men’s interests. This requires understanding the context in which these rules operate.10 In other words, legal reform to combat honour-based violence requires analysing the legal process as a product of interacting social, political, cultural and economic factors, since understanding these historical and contemporary factors that influence the legal process will help to build the optimal environment for real change. Any attempt to institute legal reform without fully understanding these interacting factors will be futile.
Accordingly, this thesis argues that legal change leads to social reform, if this legal change is based on understanding the impacts of social, religious and political factors on the formation of the legal provisions subject to analysis. Based on this argument, an
8 Dorothy Roberts, “The Meaning of Gender Equality in Criminal Law” (1994) 85(1) Journal of Criminal Law and Criminology 1, 2-3. 9 Ibid, 3. 10 Ibid, 3-4. 4 efficient process of legal reform to combat honour-based phenomenon legally and socially requires studying the evolution of the honour concept as a sign of loyalty to family, society and state in the Penal Code, since this code represents a tool of maintaining the social order. This is discussed in Chapter Five. This is in addition to understanding the nature of the relationship between the legislature and judiciary in entrenching honour-based violence. The argument presented in this thesis lies halfway between two extreme arguments. The first extreme argument is that legal reform can lead to social reform.11 On the other hand, the second extreme argument that legal reform is the final outcome of social change.12 In other words, legal reform can be both the cause and the effect of social change. Legal provisions have been formed as a result of the interaction of specific social factors. Attempts to achieve legal reform cannot be efficient without understanding these social factors. Simultaneously, legal reform that is based on an understanding of social factors and their role in forming legal provisions can lead to social change. This illustrates the fact that legal reform is interacting with social factors and vice versa in a vicious cycle. This view was expressed by some of the interviewed judges who emphasized the connection between legal and social reform as we will see in Chapter Six.
The foundational premise and theoretical framework of this thesis has two parts. First, honour-based violence is a form of gender-based violence that must be combated with the principles of gender equality. Accordingly, the thesis illustrates the prominent approaches to gender equality in the legal process. Highlighting the shortcomings of these approaches shows that both the sameness and differences approaches provide for solutions, rather than providing frameworks to analyse the causes of the problem. However, many contemporary feminist scholars, such as post-colonial feminist scholars, emphasize the “universal sisterhood” while understanding the specific cultural context of each group of women.
Second, it is essential to understand the unique conditions of Palestinian society and the role of honour in the Palestinian social structure. This can be achieved through an intersectionality feminists’ approach. This approach focuses on intersecting specific
11 Daniel R. Mandelker, “The Role of Law in Social Change” (1970) 8(2) Osgoode Hall Law Journal 355. 12 C. Ray Jeffery, “Social Change and Criminal Law” American Behavioural Scientist 523. 5 social divisions (mainly gender, class, and ethnicity); and the impact of this intersection on the specific phenomenon of gender-based violence. The legitimization of honour violence in the legal process is studied through understanding the intersection of gender, age, ethnicity, and class within the political agendas of the various nationalism projects. The main nationalism projects subject to analysis are the ones which have shaped the legal process in the West Bank: the Jordanian nationalism project that shaped the applied Penal Code No. (16) of 1960 and represents a post-colonial nationalism project, the Palestinian Liberation Organization’s nationalism project and the Israeli nationalism project which represent conflict nationalism projects; and the Palestinian state nationalism project which represents a post-conflict nationalism project. The Palestinian and the Israeli projects have shaped the Palestinian draft of the Penal Code of 2011. In other words, understanding the reasons why honour violence is entrenched in the Palestinian legal process comes through analysing the intersection of gender, class, age and ethnicity within post-colonial, conflict and post-conflict nationalism projects.
This thesis is important for two main reasons. First, honour-based violence is a fundamental breach of women’s basic rights: specifically, the right to life. Secondly, violence against women is a human rights violation that breaches the standards set by United Nations (UN) human rights treaties. Treaty bodies such as the Committee on the Elimination of Racial Discrimination, the Committee against Torture and the Committee on Economic, Social and Cultural Rights have all identified the prevention of violence against women as a crucial issue.13
3. The Scope of the Thesis
This project is an attempt to study the aspects of legal reform. Accordingly, this thesis which focuses on reform in the formal legal system including the legislature and judiciary, does not study the impact of the tribal judiciary.14
13 Jane Connors, “United Nation Approaches to the Crimes of Honour” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms and Violence Against Women (London: Zed books, 2005) 23-30. 14 In this regard, it has been argued that reforming and strengthening the formal legal system will automatically weaken the tribal judiciary. Hallie Ludsin, “Women and the Draft Constitution of Palestine” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2011) 48 and 72. 6
Honour-based violence is connected to women’s sexuality and restrictions on their sexual and social behaviour. Therefore, the thesis focuses on honour killing and other related sexual crimes, such as rape and incest. These crimes and the legal system’s treatment of them, represent the most dangerous and flagrant violation of gender equality principles to emanate from the honour concept. In these crimes, the Penal Code departs from its primary purpose of ensuring justice and equality because it reinforces the social construction of honour where victims are seen as offenders.15 This is also an example of the direct clash between individual and collective rights where the rights of individuals in collective societies are sacrificed for the sake of guarding a socially constructed morality.16 The thesis also addresses honour killing and sexual crimes because of their operational overlap. Women are sometimes killed on honour grounds to provide cover for rape or incest crimes perpetrated by others.17
The thesis examines these crimes in the Penal Code No. (16) of 1960 which is applied in the West Bank. This study does not include the Gaza Strip because Gaza has been under the control of Hamas since the political division between it and the West Bank in June 2007.18 Therefore, the Gaza Strip is outside the jurisdiction of the legislative mandate of the Palestinian Authority. Finally, the thesis studies the behaviour of legislators and judges, but not the behaviour of Public Prosecutors. This exclusion is due to the main focus of this thesis which is based on understanding the nature of the relationship between the legislature and judiciary in entrenching honour-based violence in the legal system.
15 Warrick, above n 6, 319. 16 Sherifa Zuhur, “Gender, Sexuality and Criminal Laws in the Middle East and North Africa: A Comparative Study” (2005) Women for Women’s Rights 9, 68. 17 Fadia Faqir, “Interfamily Femicide in Defence of Honour: The Case of Jordan” (2001) 22(1) Third World Quarterly 65,72. 18 In 2006, Fateh “the governing and the biggest Palestinian political party” was defeated in the legislative elections. That is, Hamas won 74 seats out of 132 seats of the legislative council. The conflict started when each party claimed its exclusive right to represent the Palestinians. As a result, the transition of power from Fateh to Hamas was impeded, and the political dilemma ended up with a division between the two parts of the Palestinian state in 2007. Following that, each party has been practicing its authority in its own territory. Fateh took over the West Bank and Hamas took over the Gaza Strip. In the light of these facts, the Palestinian Legislative Council that represents both the West Bank and the Gaza Strip has been absent since 2006. The legislative process was paralysed for a while. Then the two authorities started practicing their legislative jurisdiction. Each has its own justification. For instance, Fateh invoked article (43) of the Basic Law and its rights to issue provisional legislations in contingency situations, while Hamas invoked its power as the majority party that has the authority to pass legislation through the legislative council. Nathan J. Brown, “The Hamas- Fatah Conflict Shallow but Wide” (2010) 34(2) The Fletcher Forum for World Affairs 35, 35-42. 7
4. Obstacles and Limitations
The honour concept is closely associated with the family and private sphere.19 Consequently, honour constitutes a sensitive topic in all Arab collective societies, including Palestinian society. Therefore, the research project faced obstacles including a lack of data and documentation related to incidents of honour-based violence, and limited access to some reports and judgements.
These obstacles were not easily overcome, but the project has been designed to deal with them. The study was informed by literature from a variety of interdisciplinary sources that explores the social, economic, political and religious dimensions that underpin honour-based practices. Additionally, the researcher conducted interviews with Palestinian judges and analysed selected cases so that the secondary literature was not the only source of data.
5. The Original Contribution to Legal Scholarship
Arab and comparative literature is full of studies that attempt to address the phenomenon of honour-based violence in many Middle Eastern and Muslim countries. However, few have sought to address the special case of Palestine. The Palestinian case is unique for two main reasons. First, Palestine is an occupied country and its prolonged occupation has played a significant role in shaping gender imbalance and impeding legal development. Secondly, the legal system in the West Bank is influenced by three existing nationalism projects, and a critique of the justice system’s response to honour violence must consider the complex effects of these projects.
Accordingly, this thesis is the first to address the special case of criminal law’s response to honour-based violence in the West Bank of Palestine. Moreover, the interviews with Palestinian judges ensure that the project generates and presents an original material.
19 It is worthy of note that honour concept is closely associated with the family and the private sphere, however, it also serves as a mediating point between public and private. Therefore, honour is an issue for public law. 8
6. The Literature Review
There is a significant amount of literature on honour-based violence in Arab and Islamic societies. However, most literature discusses the phenomenon from social and religious perspectives. In spite of the special political aspects of the Palestinian case and its influence on the phenomenon, it has the same social and religious impediments facing most Arab countries. Thus, all the literature on those social and religious impediments is relevant to the research project and enriches it. Some literature highlights the special nature of the Palestinian political context, and its effect on the phenomenon of honour-based violence.
The reviewed literature comes from different fields of the social sciences including law, anthropology, sociology, philosophy and political science. Within each field many methodological approaches are followed, including empirical and analytical interpretive approaches. The literature’s methodological and conceptual diversity were utilized to enrich the arguments of this research project. The literature review is structured around the main chapters of the thesis which are designed to support the main claim of this project as we will see in the discussion below.
6.1 Reform Attempts
Gender inequality is an alarming phenomenon that attracts the attention of governmental and non-governmental organizations working in the fields of human rights and women’s rights. Stephanie Chaban, in her article Promoting Gender Sensitive Justice and Legal Reform in the Palestinian Territories: Perspective of Palestinian Service Providers,20 studies the formal and informal Palestinian efforts to upgrade and improve the status of gender equality to combat honour-based violence by highlighting the attempts of the Ministry of Women’s Affairs and the Prime Minister’s office. Chaban also describes the frustration of human rights activists because of the Palestinian Authority’s poor efforts to establish legal reform and adopt the principles of gender equality.21 Moreover, Chaban reports the efforts of human rights non-
20 Stephanie Chaban, “Promoting Gender Sensitive Justice and Legal Reform in the Palestinian Territories: Perspective of Palestinian Services Providers” (2011) 12(3) Journal of International Women’s Studies 150, 150-157. 21 Ibid, 165. 9 governmental organizations (NGOs) which bear the responsibility of enhancing gender equity principles and of focusing on problematic issues that are considered taboo in Palestinian society. One of these topics is honour violence. Chaban also discusses the efforts of the Women’s Centre for Aid and Counselling (WCLAC) in 1996 to modify the Penal Code’s provisions related to honour killing. This is in addition to its efforts when it headed a coalition seeking to modify the relevant Penal Code articles between 2004 and 2005.
Chaban discusses the experiences of reform advocates in other Arab countries, such as Egypt, Tunisia and Morocco. She explains that, reform can be classified into two styles: the secular reform style and the Islamic reform style.22 Her article highlights the modesty of previous Palestinian attempts at reform, but Chaban did not investigate the reasons behind the delay in legislative change in Palestine. The article raises a number of questions for further research including: why the Palestinian Authority has been unable to institute legal reform to date; and what are the causes of delay in the legal reform process in Palestine. It also raises the question of which style of reform is the most appropriate for Palestine, secular or religious.
Lama Abu Odeh examines the Egyptian experience of reform in combating honour killing. Her article Crimes of Honour and the Construction of Gender in Arab Societies,23 illustrates the Egyptian Penal Code’s experience of substituting the concept of honour crimes with the concept of the crime of passion. She shows that the beneficiaries from the mitigating excuse are exclusively both spouses rather than women’s descendants and ascendants. The author believes that the first step in combating the concept of honour is to replace it with the concept of passion. Abu Odeh assumes that this is the most realistic and pragmatic way to eradicate the idea of honour gradually.
On the other hand, Catherine Warrick, in her article The Vanishing Victim: Criminal Law and Gender in Jordan,24 argues that legislative change that aims at replacing the concept of honour with the concept of passion should not necessarily be the first step in combating honour crimes. She illustrates this point by citing the Jordanian experience of
22 Ibid, 153. 23 Lama Abu Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies” (2010) 2 Comparative Law Review 2, 6-47. 24 Warrick, above n 6, 337-340. 10 modifying Article (340). Warrick argues that the Jordanian judges are influenced by the concept of traditional honour because their beliefs are shaped by their surrounding social environment. Therefore, they apply Article (98) of the Penal Code No. (16) of 1960 if the perpetrator did not meet the conditions of Article (340). Article (98) states that “whoever commits a crime in a state of extreme rage or a fit of fury resulting from a wrongful and dangerous act on the part of the victim shall benefit from the mitigating excuse”. Contrary to her previous argument, Warrick argues that judges have limited authority in the civil law system. Therefore, their judgments must be consistent with the desires of the political regime.
Lama Abu Odeh, in her article Crimes of Honour and the Construction of Gender in Arab Societies,25 also concludes that Article (340) of the Penal Code No. (16) of 1960 is rarely applied in the Jordanian courts. Instead, judges apply Article (98). Abu Odeh explains that this article is general and can be applied to any murder crime committed in a fit of fury. The legal provision does not mention the sex of the victim or the perpetrator. In spite of that, judges resort to it frequently in honour killing cases. Thus, Article (340) is rarely applied since the perpetrators need to fulfil all of its conditions in order to benefit from the mitigating and exempting excuses.
Abu Odeh also argues that the Jordanian Court of Cassation enhanced this practice among judges. The court had two contradictory positions on Article (98). The first was between 1953 and 1964 when judges refused to apply Article (98) in honour killing cases. In that era, judges argued that this article should be applied only in cases of self- defence. Furthermore, judges believed that Article (98) was the general article, while Article (340) was the specific one. Therefore, they could not apply the general article based on the rule that “the specific article constrains the general one”. The second position was adopted by judges after 1964 when they started applying Article (98) as a complementary tool to Article (340) in honour killing cases. This tendency demonstrates judges’ tolerance for the honour killing concept by increasing the beneficiaries of the sanction reduction through applying the general article. It is noteworthy that the West Bank was under Jordanian rule from 1948 to 1967 and was influenced by the approaches of the Jordanian Court of Cassation. Palestinian judges still rely on the judgements of the Jordanian Court of Cassation as a non-binding
25 Abu Odeh, above n 23, 20-22. 11 guiding source of law. The consequences of these facts are reflected in the Annual Report of the Palestinian Independent Commission for Human Rights of 2011. This report shows that, in spite of the Provisional Law No. (7) of 2011 issued by the Palestinian President, Mahmoud Abbas, in May 2011 to abolish Article (340) of the Penal Code No. (16) of 1960, judges still apply the mitigated sentence in honour killing cases based on Article (98).26 The previous literature highlights the importance of analyzing Articles (340) and (98) extensively in order to understand the roles of the legislature and judges in the reform process of combating honour violence in Palestine. In this regard, one may ask: What are the roles of legislature and judiciary in the reform process in Palestine? Are they complicit? Do they have different visions? These questions constitute the framework of the analysis in Chapters Five and Six which explain honour violence in the legislative and judicial process.
Another book, Murder in the Name of Honour: The True Story,27 by Jordanian human rights activist Rana Husseini, sets out the Jordanian experience of changing the Penal Code No. (16) of 1960. The author discusses the nature of the honour bond within Jordanian tribal society, the mitigated penalty that is stated by law, and the mechanisms for changing social attitudes in Jordan, and provides accounts about women killed on honour grounds. The presented Jordanian experience is very close, but not identical, to the Palestinian one. This argument constitutes the basis of Chapter Three that is centred around the idea of applying the principles of gender equality in consideration of the unique aspects of each culture.
Lynn Welchman in her article The Bedouin Judge, the Mufti and the Chief Islamic Justice: Competing Legal Regimes in the Occupied Palestinian Territories,28argues that “law is a process that is shaped by rules and cultural logic, and it also a discourse fought over by very real agents with different political agendas”.29 This article considers the political agenda of the Penal Code No. (16) of 1960 which shaped honour violence and
26 “The Annual Report of the Palestinian Independent Commission for Human Rights of 2011” (A Report of the Palestinian Independent Commission for Human Rights, 2012). The Independent Commission for Human Rights is the human rights national institution in Palestine which was established by a Presidential Decree issued in 1995 in accordance with Paris Principles on National Human Rights Institutions. 27 Rana Husseini, Murder in the Name of Honour: The True Story (London: One World Publications, 2009). 28 Lynn Welchman, “The Bedouin Judge, The Mufti and the Chief Islamic Justice: Competing Legal Regimes in the Occupied Palestinian Territories” (2009) 38(2) Journal of Palestine Studies 6. 29 Ibid, 20. 12 how this agenda impeded the reform process. This political agenda is subject to further analysis in Chapter Five.
In her article Gender and Emotion in Criminal Law,30 Katharine Baker illustrates a different style of reform experience. Baker argues that all gender-based violations, including honour-based violence, are exacerbated by the fact that the Penal Code overlooks “complex emotions”. It reflects “immediate emotions” only. Baker also argues that the law is still incapable of reflecting the difference in emotional reactions between men and women. Baker believes that the law provides generic provisions that address both gender groups, without taking into account the emotional differences between the two sexes. For example, the use of the heat of passion defence is often based on gender. That is, women rarely benefit from the excuse.31
This approach rebuts Abu Odeh’s argument that replacing the concept of honour with the concept of passion is a desirable first step towards combating honour-based violence. Baker suggests that incorporating “emotional complexities” and understanding emotional differences between the two gender groups are necessary steps to incorporate gender equality principles into the criminal law framework.32 Baker also proposes that private law theories can be applied in the criminal law field; for example, the theory of judges’ roles in protecting the contractual balance between the contracting parties. Baker believes that this technique of using a familiar legal framework is essential in helping criminal court judges create a balance between the two gender groups, especially in countries where judges do not have an extensive human rights education and background.33
Dorothy E. Roberts, in her article The Meaning of Gender Equality in Criminal Law,34 argues that there are three approaches for defining gender equality in the criminal law context: the “differences approach,” that highlights gender differences to give women special protection; the “sameness approach,” that justifies the same treatment of both gender groups; and a third approach that defines gender equality as a matter of power distribution between the two sexes.
30 Katharine K. Baker, “Gender and Emotion in Criminal Law” (2005) 28 Harvard Journal of Law and Gender 447, 447-448. 31 Ibid, 462. 32 Ibid, 466. 33 Ibid, 451. 34 Roberts, above n 8, 2-3. 13
In ‘Honour’: Crimes, Paradigms and Violence Against Women, Purna Sen’s chapter on Crimes of Honour, Value and Meaning,35 identifies crucial obstacles confronting efforts to uproot the honour concept in many Arab and Islamic countries. The author argues that it is important not to connect the concept of honour with religion, in order to get social support and achieve concrete results. It is important not to highlight the clash between “the moral superiority of the West and the backwardness of the East”, since this complicates the task of local agents who are working towards achieving reform. These concepts are subject to further discussion in Chapter Three that highlights the different meanings of gender equality in the legal process.
6.2 Honour-based Violence in the International Context
Ratifying CEDAW is not enough to combat honour-based violence in many Arab countries. For instance, Fadia Faqir, in the article Interfamily Femicide in Defence of Honour: The Case of Jordan,36 demonstrates that cultural relativism is an obstacle to the incorporation of the principles of gender equality into the Penal Codes. Faqir shows that Egypt, Iraq, Jordan, Morocco, Tunisia and Kuwait all entered reservations to Article (16) before signing the treaty. Article (16) provides that state parties shall take all appropriate measures to eliminate discrimination against women in all matters related to marriage and family relations. According to the author, these reservations reflect an absence of the political will needed to create the desired change in these countries.
Samir El- Masri in his article Challenges Facing CEDAW in the Middle East and North Africa,37 argues that CEDAW is not an effective tool to enhance the principles of gender equality in the Middle East and North Africa, since it is a legally weak instrument that cannot overcome cultural obstacles in many countries. He concludes that the treaty does not have a significant role in combating gender inequality, including honour-based violence.
35 Purna Sen, “Crimes of Honour, Value and Meaning” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms and Violence Against Women (London: Zed books, 2005) 42-50. 36 Faqir, above n 17, 73-74 37 Samir El-Masri, “Challenges Facing CEDAW in the Middle East and North Africa” (2011) 16(7) The International Journal of Human Rights 1, 1-6. 14
On the other hand, Jane Connors, in her article United Nations Approaches to the Crimes of Honour,38 sets out the international mechanisms for combating gender-based violence. The author illustrates the most important UN accomplishments in this area, such as identifying violence against women as a human rights issue by the Committee on the Elimination of All Forms of Discrimination against Women. Additionally, in June 1993, the Vienna World Conference on Human Rights recommended creating a reporting system for the legislative progress of the state parties of CEDAW. The recommendation states that each state member should report its legislative progress in securing more protection for women without invoking cultural relativism.
The 1993 United Nations Declaration on the Elimination of Violence against Women defined violence against women as “any act that results in, or is likely to result in, physical, sexual, psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”.39 Women experience all forms of gender-based violence such as marital rape, rape, incest, sexual harassment, trafficking and honour killing.40
Accordingly, honour killing is closely linked to domestic violence, since women who are exposed to domestic violence may become victims of honour crimes.41 The UN Report on the Status of the Palestinian Women in the Light of the Beijing Platform for Action, shows that 50% of these crimes take place in homes. According to this report, the relationship between domestic violence and honour can be shaped in three different forms:42
1. Domestic violence is a preventive measure to control women’s sexual behaviour.
2. Domestic violence is a tool to punish women who violate the honour code.
3. Honour killing is a means to “cover” acts of domestic violence.
38 Connors, above n 13, 23-30. 39 Holly Johnson and Natalia Ollus et al, Violence against Women: International Perspectives (New York: Springer Science and Business Media, 2008) 1. 40 Ibid, 2. 41 Ibid. 42 “Evaluating the Status of the Palestinian Women in Light of the Beijing Platform for Action” (A Report of United Nations Development Fund for Women, 2002) 18-19. 15
Sharon K. Araji and John Carlson, in their article Family Violence Including Crimes of Honour in Jordan: Correlates and Perception of Seriousness,43 consider honour killing and shame as a special case of family violence against women. They argue that the seriousness of domestic violence stems from its social legitimacy, since it occurs within the “private sphere” and is perpetrated by males who are seen as entitled to control women. The authors also argue that houses are dangerous places, since there are many factors that create a power imbalance between family members, such as the length of time spent at home, the intensity of involvement, as well as age and sex differences. The authors set out the “theory of deviance”, and its application to the lower classes, to explain the relationship between the high rates of domestic violence and poverty.
Shireen Assaf and Stephanie Chaban, in Domestic Violence against Single, Never Married Women in the Occupied Palestinian Territory,44 set out the results of a survey conducted in both the West Bank and the Gaza Strip about patterns of domestic violence. The results of the survey show that younger girls with limited decision- making power are more exposed to all forms of physical and psychological abuse. Thus, this category of women is more likely to be potential victims of honour killing.
The article Violence against Women: Devastating Legacy and Transforming Services,45 written by Gill Hague and Lynn Marie Sardinha, focuses on domestic violence as a form of gender violence. The authors suggest that this phenomenon should be studied and understood beyond physical violence. The authors also argue that honour-based violence is considered as an issue of domestic violence.
Based on the framing of this project one may wonder whether or not honour-based violence is purely a form of gender-based violence or a manifestation of cultural violence? What is the relationship between gender, age and class and the escalation of domestic violence? The first question will be answered in Chapter Two which explains the two approaches to conceptualizing honour-based violence. The second question will be answered in Chapter Five which identifies the intersection process among specific social divisions.
43 Sharon K. Araji and John Carlson, “Family Violence Including Crimes of Honour in Jordan: Correlates and Perception of Seriousness” (2001) 7(5) Violence against Women 586, 587- 593. 44 Shireen Assaf and Stephanie Chaban, “Domestic Violence against Single, Never Married Women in the Occupied Palestinian Territory” (2013) 19(3) Violence against Women 422. 45 Gill Hague and Lynn Marie Sarinha, “Violence against Women: Devastating Legacy and Transforming Services” (2010) 17(4) Psychiatry, Psychology and Law Review 503. 16
6.3 Honour, the Formal Justice System and the Private Sphere
Criminal justice is always faced with limitations when it deals with private sphere arguments. In the book Personal Autonomy, the Private Sphere, and Criminal Law,46 edited by Peter Alldridge and Chrisje Brants, the chapters compare different cultural views on the relationship between the private sphere and criminal law and discuss the justifications for the state’s interference.
In this context, Robert H. Mnookin in his article The Public/Private Dichotomy: Political Disagreement and Academic Repudiation,47 argues that
The importance of the distinction between public/private dichotomies stems from the essential role that it plays to limit the power of government vis-à-vis the individuals. Based on the traditional understanding of the public/private dichotomy one can ask two main questions: “(1) Should certain activities be considered ‘private,’ and thus at least presumptively beyond the legitimate sphere of regulatory, paternalistic governmental power? (2) If so, what activities should be considered "private" and why? I pose these questions not with the expectation of answering them.48
In honour cultures, most honour crimes occur within the private sphere of the family. Penetrating this sphere is considered a social taboo. Thus, justice is impeded for the sake of protecting a family’s social reputation. There are many manifestations of the private sphere argument that negatively affect the role of the criminal justice system. Some of these negative impacts are: the lack of accurate statistics on honour killings; the lack of case documentation when prosecutions do occur; and the lack of institutional and legal preventive and protective measures for threatened women (potential victims).
In her article Interfamily Femicide in Defence of Honour: The Case of Jordan,49 Fadia Faqir laments that studying honour-based violence is made difficult by the absence of a reliable source of data. Statistics on gender violence are recorded by non-specialists on gender- sensitive issues. Most cases of violence remain unreported, strictly confidential and undercover within the family framework. Faqir describes the difficult experience that she had when gathering data on the honour killing phenomenon in Jordan because of the lack of documented cases within “the conservative neopatriarchal Jordanian
46 Peter Alldridge and Chrisje Brants (eds), Personal Autonomy, The Private Sphere, and Criminal Law: A Comparative Study (London: Hart Publishing Limited, 2001). 47Robert H. Mnookin, “The Public/Private Dichotomy: Political Disagreement and Academic Repudiation” (1982) 130 University of Pennsylvania Law Review 1429. 48 Ibid, 1429-1430. 49 Faqir, above n 17, 67-68. 17 society”.50 Faqir also notes that that Public Security Directorate’s Family Protection Unit in Jordan, that was meant to follow up honour killing cases, stopped tackling these issues due to the limitations of data resources.
In the same context, Catherine Warrick, in her article The Vanishing Victim: Criminal Law and Gender in Jordan,51 also states that when studying honour crimes, it is difficult to obtain accurate statistics, since many cases remain unreported. According to Jordanian statistics, the number of honour victims is estimated to be between 20 and 30 victims every year. However, the police believe that the real number of victims is higher. Similarly, in Palestine, the number of victims reflected in statistics is significantly lower than the actual number. The Attorney General of Palestine believes that 70% of all murder cases are on honour grounds.52 The 2010 Annual Report of the Palestinian Independent Commission for Human Right53shows that the jurisdiction of Public Prosecution is limited when cases are honour-based, since most of these crimes happen within the private sphere of the family. The report sets out some examples of private sphere arguments that have restricted the jurisdiction of the criminal justice system in the area of honour violence.
First, the Criminal Procedures Law No. (3) of 2001 has no preventive measures to be followed by Public Prosecution to deal proactively with potential victims at risk and the threatening behaviour of relatives before the crime takes place. For instance, the Public Prosecutor has no authority to detain threatening relatives in order to prevent a crime from occurring. Additionally, when the potential victim files a complaint, relatives have the right to view the records of the investigation including all of the testimonies, after obtaining the Public Prosecutor’s permission, according to Article (92) of the Criminal Procedures Law No. (3) of 2001. This increases the possibility of exposing women to family violence.
Secondly, the role of the Public Prosecutor comes to an end if a raped victim marries the perpetrator according to the Article (308) of the Penal Code No. (16) of 1960 that
50 Ibid. 51 Warrick, above n 6, 325. 52 Ibid. 53 “The Annual Report of The Palestinian Independent Commission for Human Rights 2010” (A Report of the Palestinian Independent Commission for Human Right, 2011). 18 contains a marriage “loophole” as a way to close the files of rape crimes and protect families’ reputations.
This literature prompts consideration of what are the “helping tools” that can facilitate the task of a future gender-oriented Penal Code of penetrating the private family sphere. This will be subject to further discussion in Chapter Seven.
6.4 Honour in Islamic Shari’a Law
Many scholars believe that honour-based violence is connected to Islam as a religion, since many Islamic rules, such as veil and dowry, are considered to violate women’s basic rights David Ghanim, in his book Gender and Violence in the Middle East,54 classifies the concept of honour as a form of violence against women. Ghanim sets out models of violation against women in the Middle East like domestic violence, female genital mutilation, as well as honour killing. Ghanim also argues that Islam’s construction of gender and its protection of the family private sphere are the reasons why the concept of honour is seen as attached to Islam. Throughout this book Ghanim presents the clash between the modernity of the West and the backwardness of the East (because of religion). The same “clash” paradigm is considered by some scholars to be an obstacle to combat honour-based violence in Islamic countries. The arguments in this book raise the questions: What are the mechanisms that should be followed to combat honour violence without triggering a cultural conflict between the East and the West? Is honour-based violence deeply rooted in Islamic rules?
On the relationship between Islam and the honour concept, Judith E. Tucker in her book Women, Family, and Gender in Islamic Law,55 tackles the issues of women’s rights in Islamic law and gender construction from an Islamic perspective. Tucker begins by discussing women’s rights in marriage, divorces, and their rights in the legal process, such as testifying. Tucker then explores the concept of the gendered space and sexuality in Islamic doctrines, and its impact on preventing interaction between the two gender groups and enhancing honour violence. The author defines the “private spheres” and “public spheres” according to Islamic law.
54 David Ghanim, Gender and Violence in the Middle East (USA: Praeger Publisher, 2009). 55 Judith E. Tucker, Women, Family and Gender in Islamic Law (London: Cambridge University Press, 2008). 19
The author of the thesis disagrees with the above two resources, and finds more compelling the analysis offered by Recep Dogan in Is Honour killing a Muslim Phenomenon? Textual Interpretation and Cultural Representations.56 Dogan exonerates Islam from responsibility for enhancing the idea of honour in Muslim societies, by using two important arguments. The first argument is that the concept of honour is deeply rooted in societies that have a cultural understanding of the idea of honour and shame. Honour and shame are two correlative concepts. Men control women’s sexual behaviour to protect their honour and avoid social censure. Thus, honour killing may occur in Muslim and non-Muslim communities. Honour killing cases can also be found in some Western societies such as Spain, Greece, and Italy. The second argument is that, despite the fact that the honour concept is entrenched in Muslim societies, Islam as a religion does not present or reflect any gender-specific conceptualization of honour. However, different interpretations of Qur’anic verses have portrayed Islam as responsible for condoning honour-based violence. To rebut this, Dogan presents some other interpretations of Qur’anic verses. These interpretations are related to key issues such as women’s sexuality in Islam, women as a second sex, the exclusion of women from politics and leadership, and women’s incarceration at home.
The article presents the reasons why some Western scholars believe in the connection between Islam and honour-based violence. Additionally, it makes suggestions on how to avoid invoking the clash between the superiority of the West and the backwardness of the East in the reform process. Avoiding this paradigm can facilitate combating honour- based violence in many Islamic countries, including Palestine.
Lynn Welchman, in her article Honour and Violence against Women in a Modern Shar’i Discourse,57 sets out the Islamic criminal jurisprudence to assess the relationship between Islamic rules and honour-based violence. After describing the basic rules of the traditional Islamic criminal system, Welchman argues that honour crimes are illegal under Islamic traditional law. Welchman argues that attaching the honour concept to Islam started as a post-classical development, when there was a social tendency to
56 Recep Dogan, “Is Honour Killing a Muslim Phenomenon? Textual Interpretation and Cultural Representation” (2011) 31(3) Journal of Muslim Minority Affairs 423. 57 Lynn Welchman, “Honour and Violence against Women in a Modern Shar’i Discourse” (2007) 5(2) Hawwa 139. 20 remove the classical punishment of adultery from the public to the private sphere, by giving males more authority to act on behalf of public authorities.
In her article Women, Honour, and the State: Evidence from Egypt,58 Beth Baron argues that honour-based violence existed among the tribes of pre-Islamic Arabia, but Islam “tempered” that custom by requiring specific conditions to apply the harsh penalties.59 Sherifa Zuhur, in her article Gender, Sexuality and Criminal Laws in the Middle East and North Africa: A Comparative Study,60 also suggests that incorporating social customs into shari’a law has been common. On the other hand, Catherine Warrick, in her article The Vanishing Victim: Criminal Law and Gender in Jordan,61 illustrates the relationship between Islamic law and customary law. She argues that:
Islamic law, like other legal orders, does not exist in a cultural vacuum. Since its inception, Islamic law has existed alongside, and has sometimes consciously taken into account cultural practices that did not originate within the Islamic system itself…. In first century-and- a- half of the Islamic era, the existing customary law remained the accepted standard unless it was expressly superseded by the dictates of divine revelation. 62
Warrick also argues that customs continued to have a prominent status in the Islamic legal jurisprudence even after the development of Islamic theology. This is due to the fact that Islamic jurisprudence was heavily reliant on the reasoning of jurists Ijtihad. Through the reasoning of jurists, many customary practices were perpetuated.63
On the relationship between honour-based violence and Islamic rules, Marina Lazerg, in her article Feminism and Difference: The Perils of Writing as a Women on Women in Algeria,64 argues that the manipulation of religious teachings is the main reason why these rules are negatively impacting on daily life.
These articles raise important questions such as: Why is honour still considered as a sign of loyalty in modernity? What is the relationship between honour violence and Islam? Is it Islamic, anti-Islamic or pro-Islamic? What is the impact of religion on
58 Beth Baron, “Women, Honour and the State: Evidence from Egypt” (2006) 42(1) Middle Eastern Studies 1. 59 Ibid, 3. 60 Zuhur, above n 16, 17 61 Warrick, above n 6, 333. 62 Ibid. 63 Ibid. 64 Marina Lazerg, “Feminism and Difference: The Perils of Writing as a Women on Women in Algeria” (1988) 14(1) Feminist Studies 81, 95. 21 modern legislation? The answers of these questions will frame the discussion in section 2.2 of Chapter Two which argues that honour is not an Islamic phenomenon.
6.5 Honour in Social Norms
After reviewing the literature on the honour concept, it is clear that many scholars have written about honour from a social perspective. Some authors clarify the connection between honour violence and the idea of protecting social morality in collective societies. For instance, Chesler and Bloom argue that “the societies where the tradition of honour killings exists are characterized by a combination of patriarchal control of female sexuality, collectivism of extended family clans, a tradition of pastoral economy, and a state that has not yet acquired a monopoly in the legitimate use of force”.65 In the same context, Manuel Eisner and Lana Ghuneim argue that honour- based violence is a form of “self-help” which exists within social structures that lack a strong state. In this case, the state gives part of its authority to the heads of tribes and families.66
Amer H. Jafri, in his book Honour Killing: Dilemma, Rituals, and Understanding,67 focuses on honour as a social concept stemming from the idea of the superiority of men over women and sets out the connection between honour and tribal communities where men are dominant. Jafri summarizes the reasons for honour killings by arguing that killing women is legitimized based on the notion of honour. In honour societies men’s honour is reliant on the behaviour of female family members. Accordingly, that behaviour should be kept under strict vigilance and transgressions punished.
Sharon K. Araji shares the same argument with Jafri. In her article Crimes of Honour and Shame: Violence against Women in Non-Western and Western Societies,68 she sets out the cultural relationship between violence against women and honour. Araji shows that social violence against women stems from the idea that a person’s honour relies on the behaviour of others. Thus, a man’s social status is derived from the good reputation
65 Phyllis Chesler and Nathan Bloom, “Hindu vs. Muslim Honour Killing” (2012) 19(3) Middle East Quarterly 43, 43. 66 Manuel Eisner and Lana Ghuneim, “Honour Killing Attitudes amongst Adolescents in Amman, Jordan” (2013) 39(5) Aggressive Behaviour 405, 409. 67 Amir H. Jafri, Honour Killing, Dilemma, Rituals, and Understanding (New York: Oxford University Press, 2008). 68 Sharon K. Araji, “Crimes of Honour and Shame: Violence against Women in Non-Western and Western Societies” (2000) 8 The Red Feather Journal of Postmodern Criminology 228. 22 of his family members. Violence that emerges from the notion of honour is the outcome of interaction between two different concepts: “man’s self-worth” and “social worth”. Finally, the author argues that the traditional concept of honour is usually mixed with social, economic and political motives.
Jane Schnider, in her book Of Vigilance and Virgins: Honour, Shame, and the Access to Resources in the Mediterranean Societies,69 explores the origin of the honour concept in some Mediterranean societies, and its relationship with the availability of resources in each society. The author argues that the concept of honour existed in Arab tribal societies because internal loyalty was necessary, since the group was moving all the time, and had no specific geographic definition. In other words, honour served as a boundary-maker for a mobile society.
Juliette Mince, in her book House of Obedience: Women in Arab Society,70 sets out forms of violations against women, such as the veil, forced marriage and incarceration at home. The author argues that these violations are based on traditional beliefs and customs. The author also discusses the idea of sexual purity of women in collective societies and its relationship to honour, arguing that the sexual purity of women is the most vital component of family honour. Thus, a family loses its honour if its women are not sexually pure, and the whole members will experience shame in a collective society.
In the article titled Shame and Honour: The Violence of Gendered Norms under Conditions of Global Crisis,71 Shelly Feldman explores how gender rules gain their social legitimacy, and the relationship between morality and sociality. She states that “moral codes governing women’s behaviour are social construction, rather than simply ruling principles that build on a normative understanding on women’s place”.72
Feldman also discusses the process of changing values and the norms that emerge from them which have positively impacted the evolution of the status of women in the West. This change was a result of economic changes that forced women to work outside homes to contribute to family subsistence. This new economic role of women changed
69 Jane Schnider, “Of Vigilance and Virgins: Honour, Shame, and the Access to Resources in the Mediterranean Societies” (1971) 10(1) Ethnology 1. 70 Juliette Mince, House of Obedience: Women in Arab Societies, (New Jersey: Zed Books, 1982). 71 Shelly Feldman, “Shame and Honour: The Violence of Gendered Norms under Conditions of Global Crisis” (2010) 33(4) Women’s Studies Forum 305. 72 Ibid, 309. 23 the customary practice of women’s subordination and inferiority.73 However, the author states that “as long as the old regime of values is in effect, the task of making the new norms operative or activating the educative function of law to change values, will be difficult and require action on many fronts”.74
On the social context, Patricia M. Rodriguez and Agneta H. Fischer, in the article The Role of Honour Concerns in Emotional Reactions to Offences75 argue that the concept of a family’s honour in honour-based cultures is derived from the social values that aim to protect an individual’s family reputation. Thus, being paranoid to protect the family’s honour reflects the concerns of the social evaluation of the individual’s family. The authors argue that in honour- based cultures there are two different codes of honour for each gender group that define gender specific concerns. The masculine honour code requires men to have full authority over their family members’ “privileges”, while the feminine honour code requires women to be sexually pure and maintain virginity before marriage “duties”.76
This literature again raises the questions: Why is honour still seen as a sign of loyalty? What is the impact of the social structure of gender on entrenching honour violence in legislation? How does the intersection of the social construction of gender and class exacerbate the problem of honour-based violence? The answers to these questions will contribute to the discussions in Chapters Two and Five respectively.
6.6 Honour Violence in Nationalism Projects
John Breuilly in his book Nationalism and the State,77argues that
The term of nationalism is used to refer to political movements seeking or exercising state power and justifying such action with nationalist arguments. A nationalist argument is a political doctrine built upon these three bases: 1- there exists a nation with explicit and peculiar character 2- the interests and values of this nation take priority over all other interests and values 3- the nation must be as independent as possible. This usually requires at least the attainment of political sovereignty.78
73 Ibid. 74 Ibid. 75 Patricia M. Rodriguez and Agneta H. Fischer, “The Role of Honor Concerns in Emotional Reactions to Offenses,” (2002) 16(1) Cognition and Emotion 143, 145-147. 76 Ibid. 77 John Breuilly, Nationalism and the State (Manchester: Manchester University Press, 1993). 78 Ibid, 2. 24
Feras Melhem, in his doctoral thesis The Origins and Evolution of the Palestinian Sources of Law,79 presents the successive political regimes that took over Palestine, their legislative activity and their influence on the sources of law. Melhem discusses legislative activity in Palestine from the Ottoman Empire era to the British Mandate, through the Jordanian rule in the West Bank, the Egyptian Administration in the Gaza Strip, and the Israeli occupation until the Palestinian Authority phase. He also highlights the legislative differences between the West Bank and the Gaza Strip, and argues that the legislative activity which took place and changed the sources of law in Palestine was influenced by the political agenda of each successive political regime.
The Penal Code in general, and in honour-related provisions, in particular, is influenced by the agendas of the different nationalism projects. That is, despite the fact that honour-based violence is an ancient phenomenon, the contemporary concept of honour is significantly shaped and influenced by politics. Beth Baron, in her article Women, Honour, and the State: Evidence from Egypt,80 argues that state founders did not seek to abolish honour violence. They simply transformed customs into legally binding rules by codifying the honour concept in the Penal Codes, starting from the Ottoman Penal Code of 1858. Lama Abu Odeh, in her article Crimes of Honour and the Construction of Gender in Arab Societies,81 also addresses the issue of honour violence from this perspective. Abu Odeh argues that the concept of honour was an essential element of the nationalism projects in most Arab countries. Abu Odeh proposes that nationalists attempted to strike a balance between modernity and tradition while taking into consideration to prevent the loss of national identity. In other words, protecting traditions is a means to protect national identity. Abu Odeh states that changing the status of women was on the agenda of the nationalism projects in most Arab countries in the post-colonial era, to catch up with first world nations. For this purpose, the private gendered space was expanded, but it was not removed, and more liberties were granted to women in the public sphere. However, to keep the society protected from the immorality of the West, it was considered that this space should always be under the control of a “code of ethics”. Once the control over this space is lost, unleashing social violence through applying the “honour code” is the only way to regain control over that
79 Feras Milhem, The Origins and Evolution of the Palestinian Sources of Law (PhD Thesis, Vrije Universiteit Brussel, 2004). 80 Baron, above n 58, 2. 81 Abu Odeh, above n 23, 29-30. 25 gendered space. In the same context, Catherine Warrick, in her article The Vanishing Victim: Criminal Law and Gender in Jordan,82 argues that “the efforts to ‘Islamise’ a customary practice or rule are relevant here for their importance in politics rather than in the development of Islamic legal theory”.83
Nawar Al-Hassan Golley, in her article Is Feminism Relevant to Arab Women?84 presents the views of Orientalists on feminism and its relevance to Arab culture. The author states that nationalism was born as a reaction to colonialism. Nationalism changed all aspects of life including women’s social status. This means that feminism in the Arab world emerged from nationalism. Parallel to Golley’s argument, Fadia Faqir, in her article Interfamily Femicide in Defence of Honour: The Case of Jordan,85 argues that the concept of honour was meant to be preserved in modern Arab Penal Codes to counter the increasing influence of Western modernization, and to protect national identity from dissolving. This explains the characterization of calls for the abolition of honour-based violence as a conspiracy from the West.
In the same political context, Raja Shehadeh, in his book From Occupation to the Interim Accord: Israel and the Palestinian Territories,86 discusses the Israeli occupation’s influence on Palestinian legislative activity and its attempts at legal reform. The author argues that the legislative activity of the Palestinian Authority is limited to law-making in accordance with the interim accord only (Oslo Accord). The Israeli military commander continues to have legislative authority in Palestine, even after the Palestinian Authority took over the West Bank and the Gaza Strip. Shehadeh examines the Military Proclamation No.7 to support his argument. This proclamation provides that the Israeli military commander is the source of the legislative power given to the Palestinians. According to the author this is the reason why the Palestinian Legislative Council could not achieve its goal of establishing legislative reform between 1996 and 2006, before the division between the West Bank and the Gaza Strip took place.
82 Warrick, above n 6, 334. 83 Ibid. 84 Nawar Al- Hassan Golley, “Is Feminism Relevant to Arab Women?” (2004) 25(3) Third World Quarterly 521, 521-522. 85 Faqir, above n 17, 75. 86 Raja Shehadeh, From Occupation to the Interim Accord: Israel and the Palestinian Territories (London: Kluwer Law International, 1997) 73. 26
This literature raises the questions: What is the impact of nationalism projects that is based on the mutual religion, ethnicity, territory, language and history on entrenching the concept of honour in Palestine? How do gender, class and age interact within the different nationalism projects? How does that interaction affect the capacity of the justice system to respond adequately to honour-based violence? The answers to these questions are discussed in Chapters Five and Six which highlight the impact of intersecting specific social divisions on entrenching honour violence in the Palestinian legal process.
6.7 Other Forms of Honour Violence in the Penal Code No. (16) of 1960
Catherine Warrick, in her article The Vanishing Victim: Criminal Law and Gender in Jordan,87 describes the Penal Code No. (16) of 1960 as a gendered law, which means that “the definition of penalties for certain crimes reflect socially sanctioned notions of appropriate sex roles”.88 Reviewing this Penal Code reveals that the concept of honour is embodied in many sexual crime articles. The main provision is Article (340) which states that:
1. He who surprises his wife or one of his immediate females in the act of committing unlawful sexual intercourse with somebody and kills, wounds or injures one or both of them shall benefit from the exonerating or exempting excuse.
2. He who surprises his wife or one of his ascendants or descendants or siblings with another in unlawful bed and kills or wounds or injures one or both of them shall benefit from the extenuating or mitigating excuse.
Article (340), which regulates honour killing is considered as the legal honour code. In addition to this key provision, honour appears in other articles dealing with sexual crimes. For instance, the Penal Code penalizes rape crimes inconsistently with justice principles. The penalty, which is temporary incarceration with hard labour, is not equivalent to the harm caused to the victim. Furthermore, the Penal Code allows the rapist to marry his victim to evade legal prosecution.89
Moreover, in incest crimes, the Penal Code differentiates between two cases. The first case is when the victim is over 15 years old and less than 18 years old. In this case, the
87 Warrick, above n 6, 318. 88 Ibid. 89 See Articles (292) to (300) of the Penal Code No. (16) of 1960. 27 crime is characterized as a rape felony. However, if the female is 18 years old and above, the crime is characterized as an incest misdemeanour. Being 18 years old in Middle Eastern countries does not necessarily mean that women are fully independent and able to make decisions, since most victims are economically dependent on their male relatives.90 In addition to this, victims of incest are more exposed to honour killing than rape victims, because this is the only way to erase the shame of the act and protect family honour.91
This overview of sexual crimes highlights many critical issues. It is important to analyse the sexual crimes provisions in the Penal Code No. (16) of 1960 in depth to understand the relationship between these provisions and honour violence. Moreover, some scholars, such as Lama Abu Odeh, compare the legislative approach and the judicial approach based on Article (340) and Article (98).92 It is insufficient in a study concerned with evaluating the legislative approach regarding honour violence to focus only on Articles (340) and (98) without reviewing the philosophy of the legislature in its punishment policy. Therefore, the legislature’s approach is subjected to an extensive analysis in Chapter Five of this thesis.
7. Research Questions
This thesis seeks to answer the main research question which is: How can the legal system in Palestine incorporate the principles of gender equality into the Penal Code to combat honour-based violence?
The following sub-questions are helpful tools to answer the main research question:
1. What are the legal dimensions of the problem of honour-based violence? 2. What is the meaning of gender equality in the context of combating honour- based violence in Palestine? 3. What are the manifestations of intersectionality in the Palestinian social structure that are relevant to understanding and addressing honour-based violence?
90 For further details review the discussion in Chapter Five. 91 See Articles (285) and (286) of the Penal Code No. (16) of 1960. 92 Abu Odeh, above n 23, 27. 28
4. Why and how is the Palestinian legislative process affected by the intersection of specific social divisions? What are the stages of the evolution of the concept of honour as a sign of loyalty in the legislative process? 5. Why and how is the Palestinian judicial process affected by the intersection of specific social divisions? What is the nature of the relationship between the judiciary and the legislature in entrenching honour-based violence? 6. What legal reforms can contribute to a solution?
8. The Methodological Approach
This is a socio-legal research project with a law reform orientation. The research design recognizes the important relationship between the methods and the theoretical framework. The conceptual framework for this thesis is based on the intersectionality approach. Through this theory, the manifestations of the intersectionality of gender, class, ethnicity within nationalism projects in the Palestinian social structure were analysed in depth. Additionally, the impact of this intersection on the legal process was analysed. A mixed-methods approach was adopted including documentary doctrinal analysis of official documents, such as investigation reports, planning studies, strategic plans of the government, reports published by the Palestinian Independent Commission for Human Rights, and the reports of non-governmental organizations (NGOs). This is in addition to analysing the related legislation, specifically the Penal Code No. (16) of 1960, the Palestinian Draft of the Penal Code of 2011, and the draft of the future Palestinian Constitution. The thesis is also based on the analysis of selected decisions of the Palestinian and Jordanian court systems dealing with honour killing, and qualitative interviews with 20 Palestinian judges representing all levels of the judiciary in the West Bank courts, from the Magistrate Courts to the High Court. Chapter Six provides more details about sample selection, the process of conducting the interviews and the design of the questions.
In these interviews, the judges regarded honour as a product of custom rather than religion. Additionally, the judges referred to a significant weakness in the Penal Code No. (16) of 1960 since it was transplanted from other laws with insufficient attention to local Palestinian conditions. They also referred to the unique nature of honour-based violence in Palestine and the role of judiciary in the civil law system. The interviewed judges were doubtful about Palestine’s engagement with the CEDAW. Finally, they 29 highlighted the constraints of relevant legislative provisions and the punitive policy of the Penal Code.
9. The Outline of the Thesis
The thesis consists of eight chapters as follows:
Chapter One: Introduction to the Research Project
Chapter Two: The Legal Dimensions of the Honour-based Violence Problem. Following the introductory chapter, Chapter Two examines some issues related to understanding the problem of honour-based violence, such as the evolution of honour in the Islamic legal jurisprudence, the definitions of the traditional honour crime and crimes of passion and the conceptualization of the problem of honour-based violence.
Chapter Three: The Meaning of Gender Equality in the Process of Combating Honour-based Violence in Palestine. This chapter examines the most prominent definitions of the concept of gender equality, and the gender equality approach that is valid to study the problem of honour-violence in the Palestinian context.
Chapter Four: Understanding Structural Intersectionality in the Palestinian Social Structure. This chapter focuses on studying the levels of intersectionality analysis to understand the social infrastructure of honour violence.
Chapter Five: Honour-based Violence in the Palestinian Legislative Process. This chapter focuses on the impact of social structure on the legislative process through studying the intersection of social divisions within the main nationalism projects.
Chapter Six: Honour-based Violence in the Palestinian Judicial Process. This chapter studies the impact of social structure on the judiciary, based on analysing cases, interviews and the results of intersection studied in Chapter Five.
Chapter Seven: Legislative and Judicial Reform for Combating Honour-based Violence. This chapter provides legislative and judicial aspects of reform based on understanding the legislative and the judicial environments.
Chapter Eight: Conclusion.
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As an endnote, in feminist discourse, some feminists have a “deep discomfort” toward using the term “honour violence”. This state of “deep discomfort” in the feminist discourse stems from the belief that the term “honour violence” implies that women are the vessels of men’s honour, or the honour of men resides in women’s bodies. Furthermore, the term does not reflect the nature of the crime as a form of gender-based violence. In other words, the term honour crime is problematic because it is the term that is favoured by the perpetrators since it reflects the perpetrator’s incentive to commit the crime. Therefore, Aida Touma-Sliman argues:
It is not possible to give the term “family honour” a positive understanding, since it attributes all the maladies of society to women’s bodies and individual behaviour, giving legitimacy to social conduct restricting women’s freedom and development, using all forms of violence, the most extreme being murder.93
As a reaction to problematizing the term “honour crimes” some activists in Pakistan renamed these crimes as the “dishonorable crimes”. Others prefer to replace the term of honour crimes with sexual crimes. Moreover, some feminists argue that honour crimes can be classified as “femicide” crimes.94 The concept of “femicide” is expanded to cover all forms of honour violence not only the paradigmatic honour killing. It is noted that the term “femicide” is consistent with feminists’ argument of conceptualizing honour crimes as gender-based crimes. Furthermore, it helps to view the problem as universal and therefore reduces the cultural tension that jeopardizes the universal effort of reform.95 However, this problematic term of “honour crimes” is continued to be used throughout the thesis to reflect the immoral motive of the perpetrators to protect the socially constructed myth of females’ honour.
93 Lynn Welchman and Sara Hossain, “Honour, Rights and Wrongs” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence Against Women (New York: Zed Books, 2005) 6. 94 It is worthy of note that the term ‘femicide’ includes all forms of homicide against women not just honour-based violence. 95 Welchman and Hossain, above n 93, 6-8.
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Chapter Two
The Legal Dimensions of the Honour-based Violence Problem
1. Introduction
Honour-based violence is a serious phenomenon that concerns law reformers because of the challenges it presents to the legal system in Palestine.1 Thus, these reformers view incorporating the principles of gender equality into the legal system as an important measure in combating this phenomenon.2 This measure became essential after the Palestinian accession to the convention of CEDAW in April 2014,3 because honour- based violence as a form of gender-based violence is classified as a form of discrimination against women.4 The process of incorporating gender equality principles into the legal system requires a broad understanding of the various dimensions of the honour-based violence problem. While there are many dimensions to this issue, this chapter’s scope is limited to studying the legal dimensions of the problem in order to help frame the recommendations for legal reform that are advanced at the end of the thesis.
The Palestinian legal code is a complex combination of three significant influences, all of which bear on the impact of law on Palestinians, including through the decisions of judges. The code is made of statutory law, which itself reflects the influences of Ottoman, British, Jordanian and Israeli legislative activity. It also comprises traditional
1 Hanan Abu Ghosh, “Nisa’ Bela Asma’: Taqreer Hawal Qatal el Nisa’ Ala Kalyfiat Al-Sharaf Fil Mojtam’ Al-Falstini men 2007 ela 2010” (Taqeer Markaz Al-Mar’a La Mos’da Al Qanonya Wal Irshad, 2010) 10. [Trans: Hanan Abu Ghosh, “Women without Names: A Report on Femicide in the Name of Honour in Palestinian Society from 2007 to 2010” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2010) 10]. 2 Ibid. 3 Palestine has also acceded to the International Covenant on Civil and Political Rights since April of 2014. Article (6) of the covenant guarantees the right to life. Australian Treaty Series, the International Covenant on Civil and Political Rights (4/10/2016)
32 law, stemming from Arab tribal heritage, and Islamic law. Understanding these three elements is particularly important in considering the problem of honour killing and gender violence in Palestine. Therefore, this chapter examines each of these elements and the way in which they affect the issue of honour killing. Before doing so, however, it is important to provide some background regarding the nature of the problem of honour-based violence.
This chapter is designed to answer two questions. First, what are the legal dimensions of the honour-based violence problem? Secondly, is the phenomenon of honour-based violence universal or is it a cultural phenomenon that is attached to a particular culture or religion? To answer these questions this chapter is divided into two main sections. The first section defines the concept of honour and its nature and highlights the evolution of the honour concept in Islamic legal theory. It also compares the main attributes of traditional honour violence and the traits of the “crimes of passion” recognized in the West, in order to clarify the position of Arab Penal Codes on honour crimes and the extent to which these codes are influenced by the two concepts of passion and traditional honour. Finally, the first section highlights the position of the Jordanian Penal Code that is applied in the West Bank in addition to the position of the Palestinian judiciary regarding honour crimes. The second section of this chapter is dedicated to exploring the approaches to conceptualizing honour violence and the consequences of conceptualizing honour violence specifically in Palestine. Highlighting the legal dimensions of the honour-based violence problem proves the universality of the problem as a form of gender-based violence and challenges the stereotype of honour of the (East) and passion of the (West).
This chapter lays the groundwork for the later chapters by introducing the core legal themes and concepts necessary for understanding and constructing a theoretical framework for this research project.
2. Introduction to the Honour-based Violence Problem
As discussed in the introduction, this section begins by highlighting the nature of honour-based violence. Accordingly, it defines the concept of honour and its historical development. Then it discusses the development of the honour concept in Islamic law, the main attributes of traditional honour crimes, and the attributes of crimes of passion.
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Finally, this section discusses the influence of the concepts of traditional honour and passion on Arab Penal Codes and the Palestinian legislative and judicial process.
2.1 Defining Honour: A Historical Overview
The concept of honour has well-documented roots in antiquity. Since ancient times honour has been connected with females’ sexuality, reflecting a patriarchal and tribal social hierarchy that requires rigid control over women and their bodies.5 Anthropological studies indicate that the concept of honour first appeared in tribal societies that were known for their mobility to seek the natural resources necessary to secure their living.6 In these tribal societies,7 honour functioned as a means of signifying social identity and loyalty. Schnider states that “in these societies the concern of honour arises when the definition of the group is problematic, when social boundaries are difficult to maintain, and the internal loyalties are questionable”.8 In mobile social groups both males and females should be “honourable”, to reflect and express their loyalty to their tribe. The definition of honourable males is connected to their social integrity, while the honourability of females is linked to their sexual purity and avoidance of bringing sexual shame upon their family. In this regard, females’ honourability depends on their social reputation rather than their actual conduct.9 Males’ social integrity and social reputation are heavily reliant on women’s sexual behaviour. In this context, Freiderich defines males’ integrity as:
The degree in which an individual enjoys a sense of wholeness, unity, adequacy, well-formedness. Integrity is symbolized and projected by complex rules of conduct and appropriateness that often go under the label of code of honour. When those rules are breached the integrity of the individual is felt to be injured, shamed, mutilated, polluted and so forth.10
5 Purna Sen, “Crimes of Honour, Value and Meaning” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence against Women (New York: Zed Books, 2005) 48. 6 Jane Schnider, “Of Vigilance and Virgins: Honour, Shame, and the Access to Resources in the Mediterranean Societies” (1971) 10(1) Ethnology 1, 2. 7 Tribes in the Middle East and Africa are defined in different ways as, “corporate (legal-like) groups, as non- corporate genealogical units, as administrative units, as coping mechanisms, and as the reinterpretation of tradition”. For more information see Richard T. Antoun, “Civil Society, Tribal Progress and Change in Jordan: An Anthropological View” (2000) 32 International Middle East Studies 441, 445. 8 Schnider, above n 6, 2. 9 Amir H. Jafri, Honour Killing: Dilemma, Rituals, Understanding (London: Oxford University Press, 2008) 20-21. 10 Paul Freiderich, “Sanity and the Myth of Honour: The Problem of Achilles” (1977) 5(3) Ethos 281, 282. 34
The phenomenon of the tribal communities’ mobility vanished when these tribes settled down in villages.11 Settled life led to an increase in the number of the tribes’ members; as a result, tribes spilt into various families that were affiliated with one tribe. This was accompanied by and associated with transferring loyalty partially from the tribes to the heads of each family. This social change amplified the collective nature of these societies and their policies of favouring the collective over the individuals and demanding individuals’ loyalty to the group.12 Again honour was the most important instrument used to reflect faithfulness and loyalty. Therefore, the power to ensure that loyalty was entrusted to the head of the family, who had exclusive patriarchal jurisdiction. In this form of society, the honour of individuals reflected upon the whole family, since family was the most powerful institution that linked them all to society at large.13 The social structure described here still exists in some Arab states which have not fully transitioned from tribal to urbanized societies.14 This form of social structure also exists in some parts of Turkey, Iran, Israel, and in some societies in the north of the Mediterranean, such as Italy and Greece.15
In plain terms, honour can be defined as “the moral integrity, the esteem accorded to virtue or talent”,16 or as “a virtue or character trait associated with integrity, good moral character and altruism”.17 However, in patriarchal societies, honour has a significantly different meaning consistent with the prevailing social construction of gender. In this
11 Antoun, above n 7, 446. The value of Antoun’s anthropological work stems from the fact that the Jordanian experience is the closet equivalent to the Palestinian experience, since 60% of Jordanians are of Palestinian origin. Moreover, it was discussed earlier in Chapter One that the Jordanian experience resembles the Palestinian one, but that does not make them identical. This resemblance makes the Jordanian experience more relevant than any other experience in the region. See Hisham Khrisat, Al- Ordiniyon Men Asel Falastini Hom Al-Khaser Al-Akbar (10/3/2019)
In the same context, the honour paradigm is also defined as “a system of symbols, values and definitions in terms of which phenomena are conceptualized and interpreted”.19 According to this definition, the honour paradigm can be viewed in conjunction with two implications: the prior assumption of good reputation and the actual possession of virtuous behaviour. That is, honour is considered as a method of assessing the assumptions of good reputation and evaluating the possession of virtuous behaviour. So, honour-linked values such as Freiderich has listed: power, wealth, magnanimity, personal loyalty, precedence, sense of shame, fame or reputation, courage and excellence interact within the framework of assumptions and possession relations.20
These social rules are also applied to women who aim to acquire some values linked to the concept of honour, such as modesty and personal loyalty. However, women’s main responsibility is protecting their sexual purity, because the tribe is concerned with maintaining its genetic purity from the male side. As discussed earlier, this protection can be achieved by women refraining from all acts that dishonour the men under whose guardianship they live.21 Accordingly, women’s sexual purity (i.e. the assumption of good reputation) and the acquisition of some of these honour-linked values, especially modesty and loyalty (i.e. possessing a virtuous norm of behaviour), are the two vital elements necessary for women’s moral honour and consequently for men’s social reputation. The honour paradigm is also defined as:
18 Peter C. Dodd, “Family Honour and the Forces of Change in Arab Societies” (1973) 4(1) International Middle East Studies 40, 44-45. Gangoli and others argue that the code of honour is a method which helped societies to function. Therefore, it is not possible to imagine a society functioning without such a code. That is because the honour code delineates the social expectations of community members and sanctions for breaching the rules. See Geetanjali Gangoli and Khatidja Chantler et al, “Understanding Forced Marriage: Definitions and Realities” in Aisha Gill and Sundari Anitha (eds), Forced Marriage: Introducing a Social Justice and Human Rights Perspective (London: Zed Books, 2011) at
A sentiment, a manifestation of this sentiment in conduct, and the evaluation of this conduct in others. In other words, it encompasses not only a person’s estimation of their own worth, but also the acknowledgment of that claim by their community through the recognition of their right to respect. Thus, honour often has multiple connotations and overlapping meanings related to pride, esteem, dignity, reputation and virtue.22
Consequently, the concept of honour does not only relate to the individual but to the larger unit: family, clan and tribe. Therefore, the male members of dishonoured families are delegated the authority to protect familial honour.
The different anthropological, historical and sociological definitions of the honour paradigm sharaf illustrate that the common elements of this paradigm are the “twin concepts” of honour and shame that compels men to control women’s bodies and sexuality.23 Men’s masculinity is highly dependent on women’s modesty, reputation and social conduct. In other words, women are viewed as the “vessels” of men’s honour. This belief reinforces the belief of women’s passivity and the idea that women are the property of their male family members.24 Gill also states that the concept of honour overlaps with the concept of shame. That is, the main motive to preserve honour is to avoid shame and protecting the social reputation.25 In other words, honour and protecting the social image are two sides of the same coin.
Control over women’s bodies and sexual behaviour is transferred from their fathers and brothers to their husbands after marriage, though there remains an honour bound link between the married women and her family. According to the social perception of the institution of marriage, the woman is supposed to be a virgin. This is in order to assure the husband that any child he has in the wedlock is genetically his.26 Therefore, connecting honour to females’ sexuality in societies that have institutions with a problematic gender construction makes an intact hymen and virginity crucial. Within these societies, the hymen is considered as “a socio-physical” sign of a woman’s morality. The wedding night represents a real social test for the woman to prove her modesty and sexual purity. If she fails to bleed during her first sexual intercourse, she is
22 Gill, above n 17, 2. 23 Rupa Reddy, “Domestic Violence or Cultural Tradition? Approaches to Honour Killing as Species and Subspecies in English Legal Practice” in Aisha K. Gill and Carolyn Strange et al (eds), ‘Honour’ Killing and Violence: Theory, Policy and Practice (London: Palgrave Macmillan, 2014) 27-29. 24 Ibid. 25 Gill, above n 17, 2. 26 Reddy, above n 23, 29. 37 likely to be accused of betraying and breaking the social boundaries set by her community.27 Consequently, Abu Odeh argues that the meaning of gender is connected with the female’s virginity. In other words, the hymen has multiple purposes. Not only does it play the important role of indicating virginity, but it also defines the limits of “the body called female” to distinguish it from the male’s body.28
Accordingly, the hymen has three significant meanings. The first is the physical hymen in the vagina that must be broken exclusively by the husband. The second is the “body hymen” which means that the female must act in a way that reflects her sexual modesty. In other words, the whole body of the female is “hymenized” to reflect her virginity to the public. The third meaning is the “social hymen” that represents the limited social space allowed for women.29 In these societies, manhood is embodied in the man’s responsibility to protect the hymen of his own females. The main way to achieve this goal is through building walls to segregate women from public life and to prevent them from interacting with men. In these societies, men are assumed to be virgins and virtuous. However, if they are not so, there are usually no severe social consequences or ramifications.30 Thus in some countries the penalty for males caught in adultery is less severe than for females.31
2.2 The Evolution of the Concept of Honour Violence in Islamic Legal Jurisprudence
Islamic criminal law has an explicit position regarding sexual relations outside of marriage. Consequently, the crime of adultery zina is considered a hadd offence.32 In
27 Lama Abu Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies” (2010) 2 Comparative Law Review 2, 11. In Palestinian culture, it is unlikely for divorced women to remarry without difficulty. Women are normally the ones blamed for the failure of marriages. Therefore, they carry the stigma of divorce. Additionally, the fact that these women are no longer virgins discourages other men from proposing to them. As a matter of fact, the second marriage of a divorced woman involves offering endless compromises on her part. Hani Ayyad, Al- Motalaqa Wal Zawaj Al-Thani (30/3/2019)
The four-witness condition implies that the perpetrators have to commit the act of adultery publicly enough that four people can see them. This means that the act of adultery is considered a punishable crime only if it has a public nature. In this sense, Quraishi argues that “the combination of the evidentiary restrictions and the harshness of the penalty go to deterrence of the ‘public aspects’ of such sexual conduct and the consequent protection of public morality”.34 Additionally, the evidentiary restriction can be understood from the jurist’s position on testifying in adultery crimes. Jurists agree that it is neither a moral responsibility nor a legal duty to testify in hadd crimes in general and crimes of adultery in particular. In other words, testifying in the courts is discouraged.35 Jurists also confirm the fact that imposing a hadd penalty for adultery crimes should not be extrajudicial. It should be imposed by a judge who represents a public authority. The eleventh century Hanafi jurists observed that:
perpetrators without causing bane (death or cutting). Muhammad Iqbal Siddiqi, The Penal Law of Islam (Lahore: Kazi Publications, 1979) 51-52. 33 Lynn Welchman, “Honour Violence against Women in a Modern Shar’i Discourse” (2007) 5(2) Hawwa 139, 147-148. 34 Asifa Quraishi, “Her Honour: an Islamic Critique of the Rape Laws of Pakistan from a Woman- sensitive Perspective” (1997) 18 Michigan Journal of International Law 287, 296. 35 Welchman, above n 33, 148. 39
If four upright witnesses testify that a certain person committed adultery and then someone deliberately kills the accused person before the judge pronounced the hadd penalty, the killer would be liable to the exact retaliation qisas since testimony gives rise to nothing unless followed by judgment.36
Despite the clear position of Islamic jurisprudence regarding the punishment of adultery, the relationship between Islam and honour-based violence is problematic. The origin of this problematic relationship stems from the connection between Islamic law rules and customs. The literature review of Chapter One highlights Warrick’s argument that Islam does not exist in “a cultural vacuum”. Islam has co-existed with different cultural norms which were shaped before it. Accordingly, Islam attempted to adjust to the cultural surroundings by absorbing some of these social norms, for instance, by absorbing the rule of “blood money” diya.37
The relationship between Islam and tradition has evolved through phases. The first phase was during the first century and a half of the Islamic era when common social norms remained valid so long as there were not repealed by Islamic teachings. The second phase started after the development of classical Islamic legal theory when the existence of social norms was highly reliant on the reasoning of jurists Ijtihad.38 During this phase, Warrick argues that some jurists immortalized some socially constructed norms as long as they did not conflict with Islamic rules. Thus, customs and traditions were considered as supportive sources of Islamic law. This motivated Islamic jurists to
36 Ibid, 149. Abed Al-Rahman Al-Jaziri summarized the position of the major four sunni schools regarding the question: If a man surprises his wife committing adultery with another man and he kills either of them, would the killer then be liable for intentional killing? The majority of opinions say that the man should not kill the adulterers in such circumstances. However, if he kills them, he will be liable to the exact retaliation qisas, unless he can support his claims by proving that the adulterers were married and bringing four witnesses who can describe the occurrence of the adultery act carefully. The prophet’s saying, hadith, on which the majority position was based is “A man might invite another man into his house to do something and then kills him for a grudge and lies about finding him with his wife. Or a man might kill his wife in order to get rid of her for some reason, and then falsely claims that he found a man committing adultery zina with her”. Additionally, Al-Jaziri explained the opinion of the minority of jurists who believe that the perpetrator shall be exempted from the intentional killing penalty if he proves that the victim was married and brings two witnesses instead of four to prove that the killing was related to adultery. Additionally, the “minority successors” believe that the man should be acquitted if there were previous suspicions of the wife’s behaviour or if the killed man was known for his “ill behaviour” or if the killer can prove the act of adultery through circumstantial evidence. Although the minority opinion is different from the majority opinion that is derived from the explicit texts of the Quran and Sunna, the minority opinion requires a certain level of evidence to prove the occurrence of adultery; unlike the current practice of honour violence. Ibid, 149-150. 37 Catherine Warrick, “The Vanishing Victim: Criminal Law and Gender in Jordan” (2005) 39(2) Law and Society Review 315, 333. 38 Ibid, 332-333. See also Tove Stang Dahl, The Muslim Family (Oslo: Scandinavian University Press, 1997) 43 and Luqman Zakariah, “Custom and Society in Islamic Criminal Law: A Critical Appraisal of the Maxim Custom is Authoritative and its Sisters in Islamic Legal procedures” (2012) 26(1) Arab Law Quarterly 75, 76. 40 recognize as valid and resort to these norms to decide the outcome of some of their judgments. They justified this approach with the claim that Islamic law deals with dynamic social needs.39
Based on the above discussion, in post-classical jurisprudence there are few cases where killing is exempted from criminal sentencing. One of these cases is when a man surprises his wife or a female relative engaged in unlawful sexual intercourse and kills her and/or her accomplice. For example, the Ottoman Criminal Code in the late fifteenth century, which was based on customs perpetuated by post-classical jurisprudence,40 included the following article:
If a person finds his wife somewhere committing fornication with another person and kills both of them together-provided he immediately calls people into his house and takes them to witness-the claims of the heirs of those killed shall not be heard in a court of law.41
In other words, in the period between the twelfth and the sixteenth centuries, which is called by Colin Imber the “increasing confidence era”, the sentences of Islamic law were influenced by social norms.42 Therefore, a man could kill a female and her partner if they were caught “in flagrante” committing a sexual act and be exempted from any penalty without providing evidence.43 The approach of assimilating honour violence into Islamic jurisprudence was reflected in the opinions of Ottoman jurists who affirmed the right of males to kill an immediate female relative and her lover. One famous example is the legal opinion fatwa of Abu Suud, the most famous Ottoman mufti and the mufti of Istanbul in the sixteenth century. His fatwa explicitly permitted honour
39 Warrick, above n 37, 333. 40 Feras Milhem, The Origins and Evolution of the Palestinian Sources of Law (PhD Thesis, Vrije Universiteit Brussel, 2004) 58. See also Beth Baron, “Honour, and the State: Evidence from Egypt” (2006) 42(1) Middle Eastern Studies 1, 3. Baron argues that the Ottoman Empire in the fifteenth and sixteenth century adopted a secular criminal law. The adoption of a secular criminal law preceded the process of transplanting Western laws in the nineteenth century. Ibid. The Ottoman Criminal Code of the fifteenth century preceded the Penal Code of 1858. The latter is the code that is influenced by French law because it was based on the process of transplanting Western legislation. This process started only in the nineteenth century. 41 Welchman, above n 33, 151. 42 Ibid, 152. 43 Some scholars may argue that these social norms are attributed to religion because honour killing can be characterized as the discretional sentences ta’zir especially when the sentence of hadd is disregarded for lack of evidence. In this context that honour violence cannot be characterized as a discretional sentence of ta’zir because the main purpose of ta’zir is disciplining the deviant behaviour. Thus, ta’zir should not include cutting or death penalties. Additionally, ta’zir should be imposed by a judge and not by the head of the family. 41 killing and delegated the authority of killing to men and senior females44of the family if they found one of their female relatives communicating with a man in any way. Jurists of the Ottoman Empire were influenced by the classical Hanafi School of jurisprudence. However, this famous fatwa violated the strict Hanafi law regarding fornication that requires a high level of evidence to prove the offence of adultery. Obviously, the aim of this opinion fatwa was to remove the punishment of sexual crimes from the public to the private sphere, since the prosecution of such crimes is almost always impossible due to evidentiary restrictions in classical Islamic jurisprudence.45
The process of assimilating honour violence into Islamic jurisprudence and removing the punishment of adultery from the public to the private sphere is called “Islamising honour”.46 The new approach of post-classical Hanafi jurisprudence was based on the customary law of the Islamic world. The role of jurists was simply to incorporate the code of traditional honour into legal practice.47 The effects of the process of Islamising honour-based violence became evident during the Ottoman process of transplanting Western laws in the nineteenth century.48 This confirms the argument that honour-based violence was Islamised for the purpose of achieving political agenda rather than for developing Islamic legal theory.49 This argument and its implications for the Palestinian legal system are discussed later in section 2.6.3 of this chapter.
In conclusion, the complex relationship between honour-based violence and Islamic law is the result of Islamising the concept of honour. This relationship has been aggravated by the attitude of Western activists who have played an important role in associating honour violence with Islam since some of them have taken an extreme position which identifies religion as the main cause of the problem. As Sptaz states:
As currently interpreted in many Islamic countries, Islamic law provides defences for men who murder their wives for committing adultery. This is not accurate, as either an assessment of the provisions of honour crimes laws or an attribution of their Islamic origins. In all of the cases in which separate statutes
44 The role of senior women in honour killing will be clarified in section two of this chapter. 45 Welchman, above n 33, 151-154. 46 Warrick, above n 37, 334. 47 Welchman, above n 33, 152. 48 The process of transplanting Western laws was called Al-Tanzimat. Transplanting Western legislation was part of the extensive process of modernizing the Ottoman Empire which was called “the sick man of Europe” at that time. For more information see Amr A. Shalakany, “Islamic Legal Histories” (2008) 1(1) Berkeley Journal of Middle Eastern and Islamic Law 1, 25-26. 49 Warrick, above n 37, 334. 42 exist, they are not part of the country’s shari’a-based family law codes, but the state-created criminal code. Simply put, not all laws in Muslim countries are “Islamic laws”.50
2.3 Attributes of Traditional Honour Crimes
As previously discussed, gender construction represents the values and behaviours imposed on both gender groups. The honour paradigm is a guardian of the social construction of gender. The social norms that govern the honour paradigm, such as controlling women’s sexual behaviour and virginity, represent the traditional honour code; the violation of the code occurs with any action that violates the normative rules regarding women’s sexuality and virginity. Violation occurs regardless of the woman’s role in the action. These actions can be adultery, premarital relationships, rape, loss of virginity, becoming pregnant outside of marriage and their choice of marriage partner. The violation of this code of conduct sometimes goes beyond sexual behaviour to include any action that challenges men’s control, such as smoking, driving or going out without permission.51 In other words, the traditional honour code requires men to have full control over women’s behaviour: actual, suspected and potential.52 The report of the UN Special Rapporteur on violence against women, which assessed honour-based violence in Lebanon in 1999, stated:
Honour is defined in terms of women’s assigned sexual and familial roles as dictated by traditional family ideology. Thus, adultery, pre-marital relationship (which may or may not include sexual relations), rape and falling in love with an inappropriate person may constitute violations of family honour.53
In this traditional honour code that is based on traditions and a common social understanding of morality, discussed earlier in section 2.1 of this chapter, honour killing is the best-known, socially acceptable form of punishment for women who violate the rules of said code.
Examining the traditional honour code indicates that traditional honour killings share the same features. This is because these crimes take place in collective societies, where families are considered to be the core building block of society, and their social status needs to be protected. In other words, collective societies are societies in which the
50 Ibid, 335. 51 Sen, above n 5, 48 and 61. 52 Lynn Welchman and Sara Hossain, “Honour, Rights and Wrongs” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence against Women (New York: Zed Books, 2005) 4. 53 Ibid, 5. 43 needs of the group take priority over the needs of each individual.54 In these societies, there is a direct clash between women’s rights and common interests; which represent a masculine standpoint.55 Therefore, women’s rights are sacrificed for the sake of guarding the society’s morality and common good.56 Serving common social interests means that the heads of families including fathers, brothers, sons, uncles, cousins and husbands are authorized to use force against women. This use of force has gained social legitimacy because it is perceived as the only way to reclaim profaned honour.57 Thus, traditional honour crimes are associated with exemption from criminal penalties since these acts are not viewed as crimes by society. Honour crimes can be committed as a result of previous planning which indicates that these crimes can be premeditated.58 The attributes of traditional honour crimes can be summarized as follow:59
• Treatment of honour crimes is based on the concept of justifying the morality of the act rather than excusing the actor. That is, “justification serves to preclude the prevention of evil from itself being called evil”.60 This justification explains why the act of killing is exempted from penalties and is no longer viewed as a crime. • Any family member who feels dishonoured by a woman’s act can commit the crime of honour killing because dishonour is seen as a collective injury. These family members can be fathers, sons, brothers, husbands, mothers, and any relative whose reputation might be tarnished by the woman’s act. • Any act that dishonours family members justifies interventions by any family member who is dishonoured. Dishonourable acts cover a wide variety of actions other than sexual betrayal. • The “element of surprise” is not a requirement for exempting the perpetrator from the penalty. Consequently, it is not necessary for the perpetrator to catch
54 Kendra Cherry, “Understanding Collective Cultures” 31 October 2018
the victim “red- handed” flagrante delicto. The perpetrator can also still benefit from the exemption even after the state of “fit of fury”61 or the loss of self- control cools off. That is, the act of the perpetrator can be premeditated.
2.4 Attributes of Crimes of Passion
The traditional honour crime is viewed as a crime that is deeply entrenched in Eastern collective cultures. Therefore, honour violence is influenced by this collectivity. Its collective feature is apparent through the fact that it is committed by any family member who is dishonoured by a woman’s behaviour. As a result, some Western scholars argue that honour violence exists exclusively in the East, while crimes of passion exist in the West (this is what is known as the stereotype of honour of the East and passion of the West).
According to this dichotomy, the direct opposite to traditional honour crimes is the idea of crimes of passion. Crimes of passion are generally defined as crimes that are caused by passionate emotions or the heat of passion which makes the perpetrator lose the ability to govern his own behaviour rationally. These crimes take place in response to the victim’s perceived provocation. The classic form of crimes of passion embodied in Article (98) is discussed in section 2.6.4 of this chapter. However, in practice these crimes are often connected to issues of sexual jealousy because of culturally held presumptions about masculinity.62
Crimes of passion are widely known in the West as a form of gender-based violence. Some scholars consider crimes of passion as “ordinary” domestic violence which makes this crime an “invisible” norm.63 This is despite the fact that crimes of passion share some explicit similarities with honour crimes because both of them threaten women’s personal autonomy and right to life.64 In this context, “passion” is defined as:
61 The term of “fit of fury” means “Thowart al-Gadab” in Arabic. 62 Matthew A Goldstein, “The Biological Roots of Heat of Passion Crimes and Honour Killings” (2002) Politics and the Life Sciences 28, 30. 63 Anja Bredal, “Ordinary v. Other Violence? Conceptualizing Honour-based Violence in Scandinavian Public Polices” in Aisha K. Gill and Carolyn Strange et al (eds), ‘Honour’ Killing and Violence: Theory, Policy, and Practice (London: Palgrave Macmillan, 2014) 138. 64 Welchman and Hossain, above n 52, 13-14. The crimes of passion which are committed by husbands and lovers in the heat of passion in the West share features with honour killing that are committed by fathers, brothers, and husbands in the East. For instance, Welchman and Hossain argue that crimes of passion are gendered crime and they cannot be classified as gender-neutral crimes. This is because these crimes represent a lack of women’s autonomy. Ibid. 45
A relationship of two people who are sexually involved with each other, for whom the sexual behaviour of one is an assault on the other’s feelings rather than public reputation. The passion model excludes all of those other men who are not or cannot be sexually involved with women, and the issue becomes less a matter of castrated masculinity and more of passionate jealousy.65
In other words, the concept of passion is based upon ideas of individualism and sexual jealousy.66 The main attributes of crimes of passion are the following:67
• Crimes of passion are based on the idea of excusing the provoked actor on the basis of his psychological condition.68 This means that the act of violence is still criminal. However, legislators sympathize with the actor’s status and provide for mitigated penalties. In other words, the partial provocation excuse, on which all crimes of passion are based, reduces the level of criminal liability but does not abolish it. Thus, the actor is regarded as “less blameworthy than if the excusing conditions were not present”.69 • Only men who are connected sexually to the female victim can benefit from the partial excuse of provocation in the heat of passion. These can be lovers, ex- lovers, husbands and ex-husbands. • The only punishable act is the act of full sexual intercourse. • Flagrante delicto is a necessary element to benefit from the mitigated penalty. In other words, the victim must be caught “red-handed” by the perpetrator who is in a state of “fit of fury”. If the perpetrator cools off, he will not be eligible to benefit from the partial excuse of provocation which provides for a mitigated penalty.
It is worthy of note that this section lays the foundation for section 3.2 of this chapter, which discusses crimes of passion and the provocation defence more extensively in the context of conceptualizing honour-based violence.
The discussion of the main features of traditional honour crimes and crimes of passion leads to the questions: What is the position of the Arab Penal Codes? Are these laws
65 Abu Odeh, above n 27, 17. 66 Abu Odeh, above n 59, 294. 67 Ibid, 292-293. 68 Provocation and insanity are the grounds for granting excuses. Insanity is a medical example where a full excuse is given for the perpetrator, while provocation is an example of a partial excuse. Horowitz, above n 60, 111. 69 Mitchell N. Berman, “Provocation as Partial Justification and Partial Excuse” (2011) University of Pennsylvania Law Review 1, 3. 46 influenced by the idea of traditional honour or the concept of crimes of passion? These questions are answered in the next section.
2.5 Honour in the Arab Penal Codes: The Legal Honour Codes
From a legal perspective, most Arab Penal Codes legitimize honour violence by codifying honour killings in what is referred to as the “legal honour code”.70 In this case, the Penal Codes deviate from their primary goal of achieving justice, in order to protect the “social order”. Under the legal honour code, the victims of honour killings are legally viewed as offenders or at least complicit in the crime.71 In this regard, Warrick argues:
The state seeks social justice, or more accurately social order, by means of redefining the victim as a complicit in the crime, as perpetrator herself, or simply as the available means for resolving a social conflict. Thus, the victim disappears in that she is no longer visible as a victim to whom justice is owed, and she reappears as a means by which a problematic situation can be resolved to best serve the interests of the community.72
The state violence reflected in the legal honour code is explained as a means by which the state maintains social acceptance and legitimacy. This social acceptance comes as a result of reflecting common social norms.73 However, the legal honour codes are different from the traditional honour code. This is because they combine some features of the latter code with elements of the concept of passion.
To demonstrate how most Arab legal honour codes are a combination of the concept of passion and the traditional idea of honour, Abu Odeh studied the position of some Arab Penal Codes. In her analysis, Abu Odeh compared the features of crimes of passion and the traditional concept of honour that were discussed earlier. The main aspects of this comparison are: the nature of the sexual act that is committed by the victim; the perpetrator’s relationship to the victim; the perpetrator’s state of mind; and the severity of the penalty. Based on the common features of traditional honour crimes, the sexual act that is committed by the victim can be any act that may dishonour her family; it can be actual sexual intercourse, or merely a suspected or potential act. According to the traditional honour code, the perpetrator able to escape any penalty for an honour crime
70 Abu Odeh, above n 27, 15. 71 Warrick, above n 37, 319. 72 Ibid. 73 Ibid, 318. 47 can be any male or senior female family member who is dishonoured by the woman’s behaviour. More importantly, a spontaneous response is not required. Honour crimes can be committed as the outcome of prior planning. On the other hand, for crimes of passion, the sexual act that is committed by the victim must represent a specific sexual act, mainly adultery. The perpetrator is generally the husband (or the lover) but in some jurisdictions it can include the wife. The husband/wife can benefit from a mitigated penalty, but the act of killing is not excused entirely. Finally, killing can be excused only if the victim is caught “red-handed”.74
In her analysis of different Arab Penal Codes, Abu Odeh classified the provisions of the legal honour codes across a spectrum, with crimes of passion and traditional honour crimes at opposite ends. Abu Odeh concluded that the provisions of honour killing in the Egyptian Penal Code are closer to the crime of passion concept than to the traditional concept of honour. This is because this provision legitimizes honour killing in cases of adultery only and gives the husband the exclusive right of killing the unfaithful wife. The Egyptian provision also states that the killing must be instant and that the penalty is mitigated. The Algerian Code represents a pure crime of passion model because it has all of the elements that are stated in the Egyptian provisions, but it also gives the wife the same right as the husband. On the other hand, the Jordanian approach is the closest to the idea of pure (traditional) honour. However, Article (340) of the Jordanian Penal Code No. (16) of 1960 has some elements of the crime of passion.75 The Jordanian code is analysed in the next section, since it is the Penal Code applied in the West Bank.
Most of the Arab Penal Codes, such as those of Libya, Syria and Kuwait, lie somewhere in the middle of the spectrum. These codes have some elements of both passion and honour.76 This means that the pure traditional honour crime no longer exists in the Penal Codes, and that the legal honour codes are influenced by the concept of passion on different levels.77 The following section discusses the implications of this argument for the Palestinian legal system.
74 Abu Odeh, above n 27, 6-10. 75 Ibid. 76 Ibid. 77 Ibid, 16. 48
Ultimately, as was previously mentioned, in the traditional honour code killing is the best-known method to punish women who violate the code of honour. However, in the Penal Codes, there are many ways to punish the “wrongful women” besides killing. For instance, the provisions on sexual crimes are influenced by the concept of honour violence, such as the provisions of incest and rape crimes. In these crimes, the victims are also viewed as offenders who are subject to severe penalties because they profaned their family’s honour. These penalties will be subject to further analysis in Chapter Five of this thesis.
2.6 Locating Honour in the Legal Process of the West Bank: The Legitimization of Honour-based Violence
This section contains an introduction to the Palestinian legal system and an illustration of violence statistics in Palestinian society, as well as a discussion of honour-based violence within the Palestinian legislative and judicial process.
2.6.1 Introduction to the Palestinian Legal System
Prior to discussing the treatment of honour violence in the Palestinian legal system, it is important to highlight the unique features of this system. These features are the product of Palestine’s unique history and political context. Palestine was under the rule of the Ottoman Empire for 500 years and was influenced by the Ottoman legal system. After the Ottoman Empire crumbled, Palestine was controlled by the British Mandate from 1922 until 1948. During this period, the British Mandate embarked on an extensive process of legislative reform that covered all aspects of life. One of the most important outcomes of this process was the issuing of the Penal Code No. (74) of 1936 and the Criminal Procedures Law of 1937.78 These laws were applied equally to both the West Bank and the Gaza Strip during the Mandate era.79
Following the endorsement of the Partition Resolution on 29 November 1947 by the United Nations General Assembly, the West Bank was annexed by Jordan, while the Gaza Strip was administered by Egypt. After annexation, the Jordanians changed the applied legal system by replacing Mandate law with Jordanian law. A decade after
78 The Palestinian Legal and Judicial database, The Legislative Process in Palestine (20/9/2014)
When the Palestinian Authority assumed sovereignty over the West Bank and the Gaza Strip in 1994, it preserved the Jordanian Penal Code No. (16) of 1960, applied in the West Bank and the British Mandate’s Penal Code No. (74) of 1936, applied in the Gaza Strip. The only legislative contribution of the Palestinian Authority in criminal matters was issuing the Criminal Procedures Law No. (3) of 2001; this law repealed the former criminal procedures laws.81
2.6.2 Honour Crimes on the Ground: Facts and Statistics
There are few surveys which examine the level of violence perpetrated against Palestinian women. The earliest of these surveys was conducted by the Palestinian Central Bureau of Statistics in 2005.82 This survey, which included both West Bank and Gaza, indicated that 23.3% of women in Palestine had been subjected to physical violence, while 10% had experienced sexual violence. Police statistics indicate that police received 1,173 complaints related to domestic sexual and physical violence against women in 2009 in West Bank. In 2010, the police received 785 complaints of domestic violence in West Bank.83
The Palestinian Forum for Combating Violence against Palestinian Women documented 11 cases of killing women on honour grounds in 2009,84 and the
80 For more details see section 3.2 of Chapter Five of this thesis. 81 The Palestinian Legal and Judicial database, The Legislative Process in Palestine (20/9/2014)
Palestinian police documented 27 cases of honour killing in 2014 and 11 cases in 2015.85 The Annual Report of the Palestinian Commission for Human Rights of 2009 indicated that nine women were victims of honour killing and in 2012; the Commission’s Annual Report indicated that 24 women were killed, 5 on honour grounds and 13 in mysterious situations which may have been honour-related. In 2013, the Commission’s Annual Report documented that 43 women were killed, 3 women on honour grounds and 16 in mysterious circumstances. In the same context, the report of 2014 documented 19 cases of honour killing, while the report of 2015 documented 9 cases and the report of 2016 documented 23 cases of suicide, honour killing and killing in mysterious circumstances.86 The 2016 Report of the Women’s Centre for Legal Aid and Counselling (WCLAC) also documented 27 honour killing cases in 2014 compared to 15 honour killing cases in 2015.87
The number of victims of honour killing may seem small, however, it is important to mention that most honour killing cases remain hidden because of their sensitivity. For instance, Kevorkian argues, based on empirical research that was conducted between 1996 and 1998, that femicide occurs frequently in the West Bank and the Gaza Strip and that perpetrators are close relatives of the victims.88 By examining the files of femicide cases at the office of the Attorney-General, Kevorkian also argues that most femicides are classified under problematic categories such as “fate and destiny deaths,”89 “suspicious deaths” and “mysterious circumstances”. Kevorkian believes that these categories may include cases of honour killing.90 This result is consistent with the
85 Al-Shorta Al-Filstinya, Dirsat w Ehsa’yat (6/9/2016)
2.6.3 The Manifestations of Honour-based Violence in the Penal Code No. (16) of 1960
In the Palestinian legal system, honour crimes possess common characteristics with these crimes in other Arab countries. For instance, Palestinian society is a collective society where women’s personal autonomy is sacrificed to protect communal social interests. Additionally, the successive political regimes that took over Palestine accumulatively exacerbated the problem of honour violence by reflecting communal social norms.92 Honour was initially codified in Article (188) of the Ottoman Penal Code of 1858. Legal reformers and legislators confirmed the Islamic nature of the honour concept; despite the fact that Article (188) was copied from Article (324) of the French Penal Code of 1810.93 Islamising honour was a factor that facilitated the process of transplanting secular Western laws to the Arab world during the nineteenth century. That is, an Islamising mechanism was often used to strike a balance between tradition and modernity, and to convince the public that secular laws have an Islamic spirit. The outcome of this action was wide social acceptance for the secularization process of laws during the last decades of the Ottoman regime.94 The Ottoman Islamising of the concept of honour helped to legitimize honour violence in the subsequent Palestinian legal process. In other words, the religious legitimization of honour justifies its presence in the secular legal system where shari’a law is a secondary formal source of law despite the influence of secularism.95 Accordingly, the British Mandate entrenched the public/private dichotomy as a way to protect the authenticity of Palestinian society and family honour. Following the same policy, the Israeli occupation weakened the formal legal system and restricted women’s social roles in the public sphere.96
91 Warrick, above n 37, 325. 92 Sen, above n 5, 49. 93 Warrick, above n 37, 334. 94 Warrick argues that “The fact that the same custom can be both hailed as Islamic and condemned as un- Islamic reveals the contingent nature of the incorporation of both Islam and customs into politics and law”. Ibid. 95 For more details about the sources of law review section 2.4.1 of Chapter Six. 96 Kevorkian, above n 12, 161. For more details about the Israeli occupation’s role in entrenching honour violence review Chapter Five of this thesis. 52
The Jordanian Penal Code No. (16) of 1960 was issued during the process of state- building in the post-colonial era. This was the era of growing nationalism in the Arab world.97 It was highlighted in Chapter One that Arab feminism was connected with this nationalism, in the process of struggling against colonialism in the early 20th century.98 For instance, women in both Egypt and Palestine contributed to changing the political situation.99 However, a split between feminism and nationalism developed during state- building process, because the agenda of nationalists diverged from the agenda of Arab feminists. The nationalists’ agenda did not meet the expectations of Arab feminists who chose to withdraw from political life. Nationalists were seeking legitimacy, public acceptance and a stronger presence within tribal society, so their policies were aimed at striking a balance between modernity and tradition, incorporating modern developments while protecting the national identity. In other words, the state balanced its vision of gender relations and emancipating women on one hand and adapted to tribal norms on the other. Therefore, although the Penal Code No. (16) of 1960 was issued in the era of modernization, nationalism and liberties, it also codified honour.100 The relationship between honour violence and the nationalism projects that have influenced Palestine are discussed in detail in Chapter Four, while the impact of those projects on the legislative and judicial process are discussed in Chapters Five and Six.
Paradoxically, the nationalists’ attempts to strike a balance between tradition and modernity made the official codified legal honour code different from the traditional honour code. That is, the legal honour code contains elements from both the traditional honour crime and the crime of passion. A study of Article (340) of the Penal Code No. (16) of 1960, illustrates this development. Article (340) represents the applied legal honour code. It states:
97 Nationalism refers to Arab cultural revival that aimed at combining Arab and Muslim culture and Western civilization. For further information see Adnan Abu Ghazaleh, Arab Cultural Nationalism in Palestine (Beirut: The Institute for Palestinian Studies) 5. 98 Nawar Al Hassan Golley, “Is Feminism Relevant to Arab World?” (2004) 25(3) Third World Quarterly 521, 532. 99 Ibid. 100 It was discussed in Chapter One that Arab feminism emerged along with nationalism as a reaction to Western colonialism. The main purpose of Arab feminists was working hand-in-hand with nationalists in the state-building process. However, the political elite went further and worked toward incorporating the customary practice of honour into law for its importance as a tool of control. A famous example of the dispute between feminism and nationalism is the case of the Palestinian Women’s Liberation Movement. The movement was internalized within the Palestinian Liberation Movement. Therefore, the social struggle was part of the political struggle against the occupation’s oppression. However, when the Palestinian authority took over, it ignored the long history of women’s struggle against occupation. For more information see Kevorkian, above n 12, 162-163; Golley, above n 98, 521. 53
1. He who surprises his wife or one of his immediate females in the act of committing unlawful sexual intercourse with somebody and kills, wounds or injures one or both of them shall benefit from the exonerating or exempting excuse.
2. He who surprises his wife or one of his ascendants or descendants or siblings with another in unlawful bed and kills or wounds or injures one or both of them shall benefit from the extenuating or mitigating excuse.101
Examining the implications of this legal honour code indicates that it borrowed some elements from the crime of passion concept and that it does not reflect a pure conception of traditional honour. For instance, the paragraphs above use the term “he who surprises”. Therefore, the killing must be committed immediately after catching the victim “red-handed” while the perpetrator is in the state of “fit of fury” or loss of self- control because of the surprise or what is called “sudden passion”.102 This means that honour violence must constitute a spontaneous and immediate act without premeditation. Theoretically, both paragraphs emphasize the psychological status of the provoked perpetrator as a basis for mitigation, rather than justifying the morality of the act of killing.
The second element which Article (340) borrowed from the crime of passion concept is that honour killing in paragraph (2) is associated with mitigated sentences for the perpetrators. The mitigated penalty in this paragraph seems similar to the idea of the mitigated penalties given to perpetrators in the cases of killing in the heat of passion. The third element that Article (340) borrowed from the passion concept is the nature of the sexual act that is committed by the victim. According to paragraph (1), the act must constitute full sexual intercourse. This means that the paragraph does not criminalize potential or suspected acts, nor actual sexual intercourse which is discovered after some time has passed; this is in spite of the fact that these actions are criminalized in the traditional honour code.
101 Article (340) itself was abolished by the Presidential Decree No. (7) of 2011. However, the text of the article was never been a subject to modification. Despite the fact that this article was abolished, it remains crucial because it reflects the legislative approach concerning the phenomenon of honour-based violence in general. 102 The term of “fit of fury” is not explicitly mentioned in the text of Article (340). However, the presence of this state is implied. In other words, without this state, the excuse and the justification that Article (340) provide are meaningless. On the other hand, the term of “fit of fury” is explicitly mentioned in the language of Article (98). 54
However, Article (340) reflects three attributes of the traditional honour crime. First, both paragraphs indicate that male family members, such as fathers, husbands, brothers and sons, all have the right to use force against women. In other words, the right of killing is not exclusive to men who are connected sexually to the women. Paragraph (1) includes the wife and the immediate females. For this purpose, the immediate female is defined as “a woman related to the man by a close enough degree to preclude marriage between them”.103 In the same context, paragraph (2) includes the grandmother, mother, wife, the descendants and the siblings as potential victims of honour killing if they breach the honour code. Secondly, paragraph (2) also criminalizes the intimate actions that precede sexual intercourse (“unlawful bed”) which is consistent with the traditional honour code that criminalizes acts other than full sexual penetration. Thirdly, paragraph (1) states that if the victim is caught “red-handed” committing adultery, the male family members, identified by the article, will be exempted from the penalty for killing her. The idea of exempting the avenger from punishment resembles the exemption that is normally associated with traditional honour crimes. Exemption in the traditional honour code is based on the belief that the act of killing is moral and justified.
Article (340) of the Penal Code No. (16) of 1960 shows a high level of internal tension; this reflects the confused vision of legislators during the process of drafting this law. The dilemma of balancing tradition and modernity produced an article which is a hybrid of the two concepts of honour and passion. This makes it difficult to identify the nature of the defences it provides; specifically, whether they are justifications or merely partial excuses that are based on the provocation defence. That is, the element of “surprise” or “sudden passion,” and the mitigated penalty, make the article more like a passion-based provision which is based on the partial excuse of provocation. On the other hand, the exemption from punishment and giving the right of killing to the male family members make the article more like an honour-based provision that relies on the idea of a moral justification for the act.104
In order to better understand the nature of the “defence” provided by paragraph 1, and whether it is an excuse or a justification, it is helpful to review the general rules of the Penal Code No. (16) of 1960 regarding cases of justification. According to this legislation, the justifications are identified and defined exclusively in the Code. The
103 Warrick, above n 37, 326. 104 Abu Odeh, above n 59, 295-296. 55 four main grounds of justification are self-defence, practising a right, executing the law, and performing a duty.105 The legislators did not expand these grounds and intended to keep them narrow. If there are grounds for justification, the committed act is legitimized, and it is no longer viewed as a crime. In this context, one may wonder if honour killing can be considered a ground of self-defence that justifies the act especially in the case of the exempting excuse.
In the case of self-defence, the person is allowed to defend his life, honour, and property if they are exposed to imminent danger. However, Articles (60) and (341) on self-defence are general while Article (340) is specific, and the specific provision limits the general. This means that honour killing cannot be classified as an acceptable act of self-defence and therefore it cannot be considered as a ground of justification according to the Penal Code. Furthermore, the Code explicitly distinguishes between justifications and the exempting excuse. This distinction is based on the idea that in the case of an exempting excuse all the elements of the crime exist, the act is still viewed as a crime and the perpetrator is fully liable to criminal prosecution. However, exemption from the penalty results from the legislature’s punitive policy which reflects the high social interests of not punishing the avenger.106
Paradoxically, the core of the legislative punitive policy described above is that the act of the provoked avenger is seen as less socially undesirable than the act of the victim. In other words, according to this legislative policy, the act of the perpetrator constitutes a crime. However, this crime has more moral virtue than the act of the victim which suggests the justification model. However, focusing on the psychological state of the perpetrator, and attaching significance to his mental condition caused by a “sudden passion”, creates confusion regarding the relevance of this mental state and the nature (basis) of the exempting excuse.
Theoretically, according to the Penal Code No. (16) of 1960, the nature of the exempting excuse is different in the legal honour code and the traditional honour code. That is, the traditional honour code fully justifies the act of killing, while the legislation still criminalizes it. One can assume that legislators did not want to justify the morality
105 For more information see Articles 59-62 of the Penal Code No. (16) of 1960. 106 Mohammed Al-Halabi, Sharh Qanoon Al-Oqobat: Al-Qisim Al-Aam (Amman: Dar Al-Thaqafa Li Nasher W Tawzee’, 1997) 161. [Trans: Mohammed Al-Halabi, The Interpretation of the Penal Code: The Theory of the Crime (Amman: Dar Al Thaqafa for Publishing and Distribution, 1997) 161]. 56 of the act of killing explicitly. Instead, they consider it a crime but cannot overlook its social legitimacy. To justify the criminal act and make this justification more consistent with modern rules related to the concept of passion, legislators added the element of the mental state of the perpetrator to serve the purpose of justifying the criminal act rather than excusing the perpetrator because of his psychological state. Thus, the defence provided by paragraph 1 of Article (340) is closer to the idea of a full justification rather than an excuse. Similarly, the defence in paragraph 2 which provides for mitigation is granted to the perpetrator based on the idea that his act is more moral than the act of the victim; the result of all this is a partial justification for the act of killing.
In conclusion, the legislature attempted to design the legal honour code in a way that simulates the passion model without causing social upheaval and clashes; this created an obvious internal tension in the provisions. Despite the internal tension discussed above, which makes Article (340) a hybrid of the concept of passion and the traditional concept of honour, it is noted that the legislature did not completely copy the rules of the traditional honour code. For instance, the legislature could not challenge the collective nature of honour crimes and limit the beneficiaries of the excuses by granting this right exclusively to husbands. However, benefiting from the exempting and mitigating excuses is still exclusive to close male family members who are identified by the law, such as fathers, brothers and sons. Killing women on honour grounds is not allowed for extended male family members, such as uncles and cousins as it was for traditional honour crimes. Therefore, if the killing is committed by an uncle or a cousin, these exempting and mitigating excuses will not be considered.107
As previously discussed, the internal tension of Article (340) reflects the legislators’ desire to adopt the passion model without undermining communal social beliefs. However, the legislature’s position becomes more complex and contradictory when examining the Code’s provisions defining sexual crimes. It was mentioned in Chapter One that examining these provisions shows that the traces of the traditional concept of honour can be also found in other articles, such as Articles (285) and (308) of the Code. Contrary to this finding, Abu Odeh argues, based on analysing the structure of Article (340), the nationalist codifiers’ attempts to partially adopt a passion model, and to strike a balance between tradition and modernity, were sabotaged by the judiciary which
107 The judicial approach concerning this matter will be discussed in Chapter Six of this thesis. 57 refused to embrace the passion model, and was more inclined to follow the model of traditional honour by Applying Article (98). This article is discussed in the next section. In other words, according to Abu Odeh, judges created their own understanding of the balance between passion and honour which is different from the legislative understanding.108
Based on the above discussion, this thesis argues that evaluating whether the legislative approach concerning honour violence is “progressive” or “regressive” and understanding its relationship with judicial behaviour in the context of honour violence cannot be understood by studying the legislative approach of Article (340) in isolation. The different manifestations of honour violence in the provisions regarding sexual crimes of the Penal Code No. (16) of 1960 should also be part of the analysis.
The thesis argues that the internal tension of Article (340), the legislative punitive policy and the legislative approach to sexual crimes all have negative impacts on the judicial approach to honour crimes. These factors encourage the judiciary to refuse to apply the passion model. For this purpose, Chapter Five of this thesis discusses the various manifestations of honour violence in the Code’s provisions on sexual crimes and shows that there is a largely invisible, complicit relationship between the legislature and the judiciary regarding the treatment of honour- related violence. Article (340) contains both elements of passion and honour, while the concept of traditional honour has prevailed in the provisions on sexual crimes. The legislature’s partial adoption of the passion model shifted responsibility to the judiciary in choosing which model to apply. The Penal Code paved the way for the judiciary to continue applying the traditional honour concept by giving it the necessary tools to do so as we will see in the next section.109
108 Abu Odeh, above n 27, 27. 109 The Jordanian Penal Code did not use the term of honour explicitly. However, Article (340) is considered the legal honour code since it contains all the elements of killing women on honour grounds explained in this chapter. This article is distinct from honour-related social traditions and the concept of crimes passion since it combines elements of both concepts. This is why it is called “the legal honour code”. 58
2.6.4 The Manifestations of Honour-based Violence in the Judicial Process
As described above, Arab Penal Codes, including the Penal Code No. (16) of 1960, contains provisions that explicitly legitimize honour-based violence. However, it is a widespread phenomenon that Arab judges do not rely on these provisions. Instead, they use their own understanding of the provocation defence stated by Article (98) to legitimize mitigated sentences in most honour killing cases. This defence is based on the fact that the perpetrator committed his crime while he is in the state of “fit of fury” or loss of self-control. This article states that “whoever commits a crime in a state of extreme rage or a fit of fury resulting from an unrightful and dangerous act on the part of the victim shall benefit from the mitigating/extenuating excuse”.110 It is noted that Article (98) does not define the meanings of “extreme rage” and “unrightful act”. The Palestinian Court of Cassation has also not provided guidelines regarding their meanings; this has allowed judges to develop their own explanations of what these terms mean. In other words, judges use their understanding of passionate emotion or the classical concept of the heat of passion to support the concept of traditional honour.111 According to the dichotomy of honour/passion, this judicial approach is paradoxical because the concept of heat of passion – the supposed opposite of the concept of traditional honour – is used to justify honour violence.
The heavy reliance on the provocation defence as defined by Article (98) has led to a decline in the use of Article (340). Ironically, Article (340) has been the subject of advocacy and lobbying campaigns led by human rights activists in Palestine concerned with ensuring that honour-based violence is appropriately punished.112 Thus, Article (340) is rarely applied in the courts with judges usually applying Article (98).113 This makes Article (98) an impediment to the process of combating honour violence in the Palestinian criminal justice system. For example, as discussed in Chapter One, the Palestinian President, Mahmoud Abbas, issued the Provisional Law No. (7) of 2011, for
110 Article (97) of the Penal Code highlights the mitigated penalties that the judge applies if the mitigating excuse in Article (98) is found. That is, if the criminal act is a felony punished with the death penalty or permanent hard labour, the penalty becomes an incarceration for at least one year. If the criminal act is another felony, the new penalty is incarceration from six months to two years. If the criminal act is a misdemeanour, the penalty becomes six months of incarceration or paying 25-dinars fine. 111 For more details about the history of this judicial approach review Chapter One, section 6.1 of this thesis. 112 Welchman and Hossain, above n 52, 11. 113 Abu Odeh, above n 27, 20-22. 59 abolishing Article (340) of the Penal Code No. (16) of 1960 and limiting the mandate of Article (98) by excluding the crimes of femicide from it. However, judges still rely on Article (98) in honour killing cases.114
Judges in the West Bank can apply Article (98) if the perpetrator does not meet the conditions of Article (340). These conditions are an immediate degree of blood relationship between the perpetrator and the victim and that the perpetrator must commit the act of honour-based violence immediately after catching the victim “red-handed” committing adultery. In other words, Article (98) can be applied by judges if the victim committed a sexual act and is detected some time later, or if she committed a suspicious or potential act that may dishonour her guardian. Furthermore, Article (98) can still be applied even if the perpetrator’s crime is planned or not immediate, which is contradictory to the spontaneous nature of the provocation defence on which this article is based.115 This approach stems from some judicial precedents set by the Jordanian Court of Appeal regarding the nature of the provocation defence in honour cases. These precedents reveal that the state of “fit of fury” can last for hours and sometimes days.116
In addition, the beneficiaries of the excuse provided by the Article (98) are all male relatives, including male extended family members, such as uncles and cousins. The explicit text of the article provides for mitigation based on the idea of provocation. However, the judicial approach of applying this article to honour killing cases indicates that judges use it as a partial justification for the honour killing. The term “unrightful act”, in the article is interpreted in a way that treats the act of the victim as less morally acceptable than the act of the perpetrator. Therefore, the act of the perpetrator is partially justified.
Constant criticism of the judicial practice of abusing Article (98) by applying it in honour killing cases made the judiciary consider changing its approach. Accordingly, they limited the application of this article to cases of spontaneous murder, while cases of premeditated killing were excluded from the provocation defence of Article (98). They have instead applied Article (99) in cases of premeditated killing to mitigate the
114 “The Annual Report of the Independent Commission for Human Rights of 2011” (A Report of the Independent Commission for Human Rights, 2012). 115 Warrick, above n 37, 337-338. 116 Mohamad Sobhi Najem, Al-Jara’em Al-Waq’a Ala Al-Ashkas (Amman: Dar Al-Thaqafa La Nasher W Al-Twzee’,1999) 98. [Trans: Mohamad Sobhi Najem, The Crimes against the Person (Amman: Dar Al- Thaqafa for Publishing and Distribution, 1999) 98]. 60 penalties for perpetrators of honour killings. This article is related to the discretional authority of the judges to mitigate penalties, stating that “if mitigating reasons are found, the court can substitute the death penalty with incarceration from 10 to 20 years. It also can substitute permanent hard labour with temporary hard labour from 5 to 15 years. Finally, the court can mitigate the penalty of any other felony up to half the sentence”.117 Surprisingly, the Palestinian High Judicial Council issued an instruction that attempted to force judges to apply Article (99) in all cases including honour killings,118 in contradiction to the fact that this article is discretionary. The judicial approach of changing from applying Article (98) to Article (99) in cases of premeditated honour killing is discussed extensively in Chapter Six.
Another technique used by some judges has been to resort to self-defence in honour killing cases. To combat this approach, Jordan modified Article (340) in 2001 and explicitly prevented the resort to self-defence in cases of honour killing.119
Contrary to the argument advanced in this thesis that the legislature and the judiciary are complicit in impeding the punishment of perpetrators of honour-based violence, it was discussed earlier in this chapter that some scholars argue that greater culpability lies with judges. For instance, Abu Odeh argues that judges created their own balance between the two concepts of traditional honour and passion by pushing the system to be honour-based. In other words, judges re-defined the traditional concept of honour by applying Article (98).120
The previous discussion raises questions about how honour-based violence should be conceptualized. Is honour-based violence a cultural norm or it is a form of gender-based violence? Is honour-based violence attached to certain cultures? To what extent is the dichotomy of honour of the East and passion of the West true? Does the judicial
117 Article (100) of the Penal Code is complementary to Article (99). This article states that “the court can also mitigate the penalty of misdemeanours where mitigating reasons are found. The court can replace the incarceration penalty with fine. In the cases where the judge chose to resort to mitigating reasons, his/her judgment must be extensively reasoned”. 118 Majles Al-Qada’ Al-Ala Al-Falsteeni, Ta’leemat w Anzima (20/1/2015)
3. Conceptualizing Honour-based Violence
There is extensive debate in public discourse regarding the nature of honour-based violence and whether it should be conceptualized as a “subspecies” of gender-based violence like, crimes of passion, or as a “species” of its own, as a traditional practice that is not related to gender-based violence.
The debate over categorizing honour-based violence as a feature of gender-based violence or as a cultural practice is essential to the process of combating honour crimes. If it is categorized as a form of gender-based violence, the appropriate approach would involve employing a gender equality paradigm. However, if it is categorized merely as a cultural practice, the appropriate approach may be the culture-based differentiation approach which relies on a narrow understanding of each culture.121 In other words, the debate over the essence of honour-based violence raises the issue of the universality of the gender mainstreaming approach and its ability to be applied in different societies regardless of different cultural backgrounds. This section defines the two approaches of conceptualizing honour violence and the consequences for Palestine of conceptualizing honour violence as cultural or gender-based violence.
3.1 Honour Violence as Cultural-based Violence: The Unidimensional Approach
Gill argues that “academics are trying to avoid the trap of simplistically viewing culture, ethnicity, religion or nationality as the sole causal factor behind this complex phenomenon”.122 However, Western media still understands honour violence based on the “cultural factor explanation”,123 which suggests that there are culturally specific causes of the honour violence phenomenon. This is quite clear through their attribution of this problem to specific cultures, nations, religions, and regions; especially to Islamic
121 Reddy, above n 23, 29. 122 Gill, above n 17, 1. 123 Karl Roberts, “Towards a Psychologically Oriented Motivational Model of Honour-based Violence” in Aisha K. Gill and Carolyn Strange et al (eds), Honour Killing and Violence: Theory, Policy, and Practice (London: Palgrave Macmillan, 2014) 71. 62 and Middle Eastern societies.124 Thus, the cultural roots of honour-based violence make it different from other forms of sexual violence (such as crimes of passion). Crimes of passion are seen as individual acts that are not connected to social norms. According to this approach, each country can combat honour violence based on its own culturally- appropriate methods. Sen argues that attaching honour crimes to Islamic and Middle Eastern societies is based on the Orientalist perception of the East and Islam which portrays the East as backward and emphasizes the superiority of the West.125Orientalists argue that “honour violence simply does not happen in Western countries unless immigrants bring it with them”.126
As a result of conceptualizing honour violence as a cultural crime, some Western countries which have cultural minorities have gender mainstreaming policies for combating violence against women that classify crimes of passion as ‘ordinary violence’ and honour-based violence as ‘other cultures’ violence’. These policies illustrate the differences between the two crimes. These differences,127 such as the collective nature of honour and the previous planning that precedes honour crimes, make it impossible to assimilate “other cultures’ violence” into policies based on a gender mainstreaming approach. In this context, Gill and Anitha argue that attaching the problem of honour to a certain culture or minority denies the gendered nature of the problem and encourages right wings governments in some Western countries to issue legislation and polices to restrict immigration in order to protect “community cohesion”.128 3.2 Honour-based Violence as a Subspecies of Gender-based Violence: The Universal Approach
Gender-based violence is defined as “the violence that targets individuals or groups on the basis of their gender”.129 In the same context of defining gender-based violence, the
124 Hannana Siddiqui, “There is no Honour in Domestic Violence Only Shame: Women’s Struggles against Honour Crimes in the UK” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence against Women (New York: Zed Books, 2005) 277. 125 Sen, above n 5, 43. 126 Abu Odeh, above n 59, 306. 127 Bredal, above n 63, 144. See also Siddiqui, above n 124, 275-278; Sen, above n 5, 50. 128 Aisha Gill and Sundari Anitha, “Forced Marriage Legislation in the UK: A Critique” in Aisha Gill and Sundari (eds), Forced Marriage: Introducing a Social Justice and Human Rights Perspective (London: Zed Books, 2011) at
Committee on the Elimination of All Forms of Discrimination against Women130in its General Recommendation No. (19) defines gender-based violence as:
Violence that is disproportionately directed against a woman because she is a woman, or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.131
The UN Declaration on the Elimination of Violence against Women, adopted by the UN General Assembly on 20 December 1993, defines violence against women as:
Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.132
These international tools are a quantum leap toward conceptualizing honour violence as a form of gender-based violence and rejecting the cultural relativism argument.133 These definitions reflect the view that gender-based violence is a framework that contains all forms of violence against women including sexual violence. Sexual violence includes honour violence in societies that have a problematic social construction of gender. The former United Nations Special Rapporteur on violence against women, Radhika Coomaraswamy,134 states that:
Fran Danis and Sherya Bhandari, “Understanding Domestic Violence” in Lettie Lockhart and Fran Danis (eds), Domestic Violence: Intersectionality and Culturally Competent Practice (Colombia University Press, 2010) 30. 130 The Committee on the Elimination of All Forms of Discrimination against Women is a treaty body that was established in 1979 to monitor the application of the CEDAW. This treaty body is credited for classifying violence against women as a human rights issue for the first time. Moreover, this treaty body adopted general recommendations on the CEDAW. It is the best-known international document for defining the role of states in women’s protection. UN Women, The Committee on the Elimination of All Forms of Discrimination against Women (5/12/2014)
In my work as a Special Rapporteur I soon came to realize that violence against women is closely linked to the regulation of sexuality. I sought to address honour crimes as a clear violation of human rights and given their gendered nature as a manifestation of violence against women.135
The explicit connection between honour-based violence and gender-based violence has been clearly demonstrated. Some feminists have examined a wide range of literature that addresses the concept of honour,136 and found that the major similarity between the two forms of violence against women is that both are motivated by men’s patriarchal authority to control women’s bodies. In this context, patriarchy is defined as “a social system in which men disproportionately occupy a position of power and authority. Besides, central norms and values are associated with manhood. In other words, men are the primary focus of attention in most cultural spaces”.137 Patriarchy emerges from social traditions, the teachings of religions and the practices of political regimes. Combating this masculine control and the patriarchal social structure have been at the core of the feminist struggle. As a result of this overlap between honour crimes and gender-based violence, some scholars argue that honour crimes are committed in some societies in the name of domestic violence against women.138 Conversely, in different societies such as Eastern societies, domestic violence against women is justified in the name of honour.139 For example, Gill studied the case of Shafilea Ahmed, a 17-year old honour victim from Pakistan, and highlighted the acts of domestic violence that she was subject to for several years before she was killed on honour grounds. She was exposed to a high level of domestic violence aimed at preventing her from committing any act that might tarnish her family’s honour.140
In feminist discourse, the distinctive concepts that reflect masculine patriarchal authority over women’s bodies in honour-related literature are mainly the “twin concepts” of men’s honour and women’s shame. Honour and shame require men to
135 Coomarawamy, above n 133, Preface. 136 Aysan Sever and Gocecicek Yurdakul, “Culture of Honour, Culture of Change: A Feminist Analysis of Honour Killing in Rural Turkey” (2001) 7(9) Violence against Women 964, 964; and Reddy, above n 23, 28-33. 137 Allan Johnson, The Gender Knot: Unravelling our Patriarchal Legacy (Temple University Press, 2005) 15. 138 Siddiqui, above n 124, 265. 139 Ibid, 266. In her article, Siddiqui studied some cases of homicide in UK and found out that domestic violence victims could not leave violent situations because they were afraid of dishonouring their families. 140 For more information see Aisha Gill, “All They Think about is Honour: The Murder of Shafilea Ahmad” in Aisha K. Gill and Carolyn Strange et al (eds), ‘Honour’ Killing and Violence: Theory, Policy, and Practice, (London: Palgrave Macmillan, 2014) 177-196. 65 control and monitor women’s sexual behaviour, and demand that women possess a high level of chastity and modesty.141 This also explains why lesbians can be subjected to honour-based violence in spite of the fact that they are not engaged in sexual relations with men.
Accordingly, patriarchal control over women’s bodies which is considered a common denominator between honour crimes and other forms of gender-based violence can be generalized to explain conceptualizing honour-based violence as a form of gender-based violence in all cases. For instance, the traditional definition of patriarchy can explain the reason why honour-based violence is sometimes committed by females against females. Additionally, patriarchy can explain why honour-based violence can also be committed against men.
The ongoing relevance of patriarchy as a framework that explains the similarities between honour and gender-based violence is supported by the argument that men can escape the effects of honour violence more easily than women.142 Further support comes from evidence that only a small percentage of women are engaged in violence against women.143 More importantly, in honour cases which have male victims, “males’ victimization revolves around their attempts to control women”.144 Even if the victimization of a man is caused by his refusal of an arranged marriage or because of his choice to be a homosexual or bi-sexual, this does not change the fact that most honour victims are female and most perpetrators are male,145 with statistics showing that the victimization of men is very uncommon.146 For instance, the United Nations reported in 2000 that male honour victims constituted 7% of the overall 5,000 honour killing cases that occur yearly.147 Additionally, in a sample of 230 honour killings that occurred between 1989 and 2009, only 7% of the victims were male.148
Moreover, some academics, such as Reddy, argue that the hierarchy of power imposed by patriarchy can explain the victimization of males. This hierarchy of power is called
141 Reddy, above n 23, 30. 142 Server and Yurdakul, above n 136, 973; Reddy, above n 23, 31. 143 Gill, above n 17, 7. 144 Reddy, above n 23, 32. See also Siddiqui above n 124, 264. 145 Gill, above n 17, 7. 146 Reddy, above n 23, 31. 147 Roberts, above n 123, 71. 148 Gill, above n 17, 7. 66 the “hegemonic masculinities”.149 Women are at the bottom of this hierarchy, while men are at the top and are the dominant gender group. In order to preserve this state of gender domination, the “norms of masculinity” legitimize the use of violence150which can be used against women and “weak” men; this explains the victimization of some men, especially those who are homosexuals. However, “weak” men are in a better social position than women in this hierarchy of power. They can still benefit from women’s inferior status and oppress women who are under their authority.151 This hierarchy of power is also a helpful means of explaining women’s roles in committing honour violence. Older women who have lost their sexual appeal do not usually constitute any danger to family honour. Therefore, they have more authority in the hierarchy than younger women. Thus, they have been given the task of policing younger women in their families to compensate for the fact that they were oppressed by men in the past.152
Universality is the common ground that links international human rights standards and the feminist approach to explaining the nature of honour violence as a form of gender- based violence. The aim of the international standards is to unify understanding of the various dimensions of the honour violence problem and the means of combating it. According to these standards, gender-based violence is the universal umbrella under which all manifestations of violence against women can be explained, including honour-based violence. The universality of the gender-based violence concept is also emphasized in feminist literature. Feminists argue that gender-based violence is deeply rooted in the patriarchal social structure which is supposed to represent a universal framework that explains every manifestation of violence against women which occurs in all societies. In other words, according to a mainstream feminist approach, all cultures share the same roots of violence against women. Consequently, the claim of honour of the East and passion of the West is a fallacy.
The falsity of the honour (East)/passion (West) dichotomy, and the universality of the problem of honour-based violence as a form of gender-based violence is demonstrated by the provisions of some Western Penal Codes that were applied until quite recently. For example, honour violence was known in the Penal Codes of some European
149 Reddy, above n 23, 33. 150 Ibid. 151 Ibid. 152 Ibid, 32. 67 countries, such as France and Italy.153 Article (324) of the French Penal Code of 1810 legitimized honour killing. This article was only repealed in 1975.154 The Italian Penal Code also included different forms of honour violence.155 For instance, Article (587) of the Rocco Code legitimized honour killing and was only repealed after the Second World War.156 Furthermore, traces of honour violence can be inferred from provisions dealing with sexual crimes in the Italian Penal Code. For instance, sexual violence was classified as an offence against public morality and decency, rather than as a crime against the person, until 1996.157 Article (544) of the Rocco Code also allowed the perpetrator of the crime of rape to marry his victim.158
Further support for the universality of honour violence as a form of gender-based violence which is deeply rooted in the patriarchal structure of all societies is provided by the provocation defence.159 The Law Commission of England and Wales reviewed the provocation defence that is used to excuse crimes of passion. The conclusion of this review was that the provocation defence is deeply rooted in the traditional concept of honour.160 Therefore, Geetanjal and others argue that “there are many examples from mainstream British society which attest the importance of honour. It would be more accurate to subscribe to the view that all societies operate within codes of honour”.161 It follows that it is important to avoid a simplistic between ‘crime of passions’ and honour-based violence and western/eastern phenomena, respectively.
Support for this argument can also be found in the case of the United States of America where there is tension within the legal system because it contains both concepts of passion and honour. This tension is between the rules of common law and judicial
153 Ibid, 44. 154 Abu Odeh, above n 27, 5. Honour killing in France was abolished by Article (17) of the Law No. 617/75 issued in November 1975. Ibid. 155 Maria Gabriella Bettiga, “Crimes of Honour in the Italian Penal Code: An Analysis of History and Reform” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence against Women (New York: Zed Books, 2005) 231-232. 156 Ibid, 234. Article (587) of the Rocco Code states: “whoever discovers unlawful sexual relations (i.e. sexual relation outside of marriage) on the part of their spouse, daughter or sister and in the fit of fury occasioned by the offence to their or their family’s honour causes their death, shall be punished with a prison term from three to seven years”. 157 Ibid, 232. 158 Ibid. 159 Abu Odeh, above n 59, 296-305. 160 Siddiqui, above n 124, 265. Sen, above n 5, 50. See also “Law Commission’s Report on Partial Defence to Murder” (Report of UK Law Commission, 2004) at:
On the other hand, judges developed an objective element for the definition of a provocation based on the “reasonable man that would have been provoked”.164 In the case State v. Watkins, the courts have described the reasonable man criterion in the following terms:
Reasonableness is the test. The law contemplates the case of a reasonable man- an ordinary, reasonable man- and requires that the provocation shall be such as might naturally induce such a man, in the anger of the moment, to commit the deed. The rule is that reason should at the time of the act be disturbed by passion to an extent which might render ordinary men, of fair, average disposition, liable to act rashly and without reflection, and from passion rather than judgment.165
As an attempt at reform, Section 210.3(1)(b) of the Model Penal Code incorporated both subjective and objective standards. That is, legislation was modified to be consistent with judicial practice.
The judicial approach of objectifying the provocation defence can be seen as a transformation from the passion model to traditional honour model. That is, killing women based on the provocation defence resembles killing on the grounds of traditional honour. For instance, Flagrante delicto is not always required for the perpetrator to benefit from the mitigated penalty, so the crime can be planned, and the perpetrator can still benefit from the mitigation. Additionally, any act that challenges a man’s will can
162 These categories are serious battery, aggravated assault, mutual combat, the commission of a serious crime against a close relative, and unlawful arrest. The adequacy of the provocation is a matter of law to be determined by the courts. Abu Odeh, above n 59, 296. 163 Ibid. 164 Ibid, 297; Berman, above n 69, 10. 165 Abu Odeh, above n 59, 297. 69 be considered a legitimate ground for applying the provocation defence. This means that sexual intercourse is not the only conduct that can constitute a provoking act. For instance, the defendant can claim “passion” because the victim planned to end the relationship or filed for divorce.166 Victoria Nourse states that:
……Even infidelity has been transformed under reform’s gaze into something quite different from the sexual betrayal we might expect. It is the infidelity of a fiancée who danced with another, of a girlfriend who decided to date someone else, and of the divorcee found pursuing a new relationship, months after the final decree. In the end, reform has transformed passion from the classical adultery to the modern dating moving and leaving.167
Studying the nature of the objectified provocation defence whether it is a justification or excuse indicates that American judges usually oscillate between excuses and justifications when deciding a killing case based on passion.168 Consequently, there are two different views reflected by legal precedents regarding the nature of defence in cases of killing women in the heat of passion. The first group of precedents indicates that the defence which is used in crimes of passion is based on the idea of justification. Abu Odeh argues that all common law forms of provocation defence take the form of justification because they focus on the nature of the actions rather than the psychological state of the provoked person; for example, the overreaction of the defendant is considered less socially undesirable than the action that provoked it. This demonstrates the concept of justification where the defendant has the right to claim justice with his own hands.169 On the other hand, the second group of legal precedents indicates that the provocation defence is an excuse because the perpetrator is considered less blameworthy,170 with “the reasonable man” approach created to excuse men who are going through “blind and unreasoning fury”. This approach is intended to focus on the perpetrator’s psychological state rather than justifying the morality of the act.171
166 Ibid, 304-305. 167 Victoria Nourse, “Passion’s Progress: Modern Law Reform and the Provocation Defence” (1997) 106 Yale Law Journal 1331, 1332-1333. 168 Abu Odeh, above n 59, 300. 169 Ibid. 170 Ibid. 171 Ibid. In the case Maher v. people it is stated that “if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, the offence is man- slaughter only and not murder”. Ibid, p.301. 70
To resolve controversy over the nature of the provocation defence, some legal scholars, such as Fletcher have classified the defence that is used in crimes of passion as a justification. They have supported their claim by the fact that “there is a high tendency in the common law system to seek justification for acts committed. Judges need to feel that the act was morally right”.172 The language of the “reasonable man” approach helps them to justify the morality of the act. In other words, it is true that this approach theoretically focuses on the psychological state of the perpetrator. However, the way in which judges use it in gender violence, makes crimes of passion resemble honour crimes, and shows the judges’ high-level aversion for excusing conditions.173 This means that the provocation defence merely justifies the morality of the action rather than excusing the perpetrator.
The argument that Palestinian and Jordanian judges resolve the tension between honour and passion by applying Article (98) was previously discussed in this chapter. According to this argument, applying Article (98) means that judges can avoid applying Article (340) which requires flagrante delicto and instant killing, or what Abu Odeh called the elements of the classical crime of passion. This means that judges introduced the provocation element for crimes that do not meet the flagrante delicto element of Article (340). In other words, judges used the classical definition of passion or provocation to justify honour violence. The judiciary’s approach to dealing with the issue prevented a full transformation from the traditional honour model to the passion model. The main purpose of this argument is to show that the legislature is more open to reform processes compared to the judiciary.
Chapter Six of the thesis refutes the above discussed argument by showing that Palestinian judges are playing a complicit role with the legislature. However, this argument is still helpful to show that honour-based violence is not attached to a particular region, such as Middle East. That is, based on the claim that judges apply Article (98) to push the system to be honour-based through using the provocation defence and the examination of the provocation defence in the USA, one can claim that
172 Ibid. 173 Ibid. The picture is bleaker when it comes to juries’ role in the provocation defence. That is, juries are known for being lenient by accepting defences that judges would not accept, such as insanity. For instance, in State v. Remus, juries were convinced by the claim of the defendant, who had killed his wife, that he was insane when he had committed the killing act. It is believed that the defendant managed to gain the juries’ sympathy based on the idea that his wife was cheating on him. Ibid, 303. 71 there is a judicial tendency to apply the traditional honour model rather than the passion model in both legal systems. Women can be victims of honour killing in different cultures. Thus, the problem should not be attached to a certain culture or religion as the Orientalists claim. In other words, the stereotype of honour of the East of and passion of the West can be classed as a misconception.
Bredal also demonstrates the falsity of the stereotype of honour of the East and passion of the West by arguing that it is ambiguous. Bredal argues that the differences between honour crimes that are committed in the East and crimes of passion that are committed in the West are vague, and that a “binary opposition” approach is inaccurate. For instance, it is said that honour crimes are planned, while crimes of passion are spontaneous.174 Bredal points out that, contrary to the classic definitions and differentiation between the concepts of passion and traditional honour, many crimes of passion are premeditated. That is, research indicates that an element of planning exists in that form of crime.175 Additionally, the claim that crimes of passion are always committed by the victim’s sexual partner is rebutted by the results of Gill and Thiara’s research (cited by Bredal) which shows that women may be exposed to crimes of passion as a result of the actions of their in-laws as well as their husbands.176 In other words, crimes of passion which are committed in the West share so many features in common with honour crimes committed in the East, that honour violence can be regarded as a universal problem which occurs in different cultures.177
174 Bredal, above n 63, 144. 175 Ibid, 145. 176 Ibid, 145-146. 177 Based on the similarities between the crimes of killing women committed in the East and the West, there are some pioneering experiences that aimed at overcoming the assumption of the collective nature of honour crimes and incorporating honour violence into the mainstream feminism agenda of combating violence against women. This is in order to challenge the views of Orientalists who portray these killing crimes as honour-based in the East and passion-based in the West because of the collective nature of honour crimes in the East and the individual nature of crimes of passion in the West. One of these pioneering experiences is the experience of the Home Office in the United Kingdom in 2004. The Home Office expanded the scope of the domestic violence definition. Accordingly, domestic violence is defined as “any incident of threatening behaviour, violence or abuse between adults who are or have been in a relationship together, or between family members, regardless of gender and sexuality. Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in- laws or step family”. The step of expanding the scope of domestic violence definition to cover all forms of violence that occur between family members indicates that honour violence can be a form of domestic violence and therefore it can be a subspecies of gender-based violence. In other words, this definition rebutted the traditional argument that honour-based violence is a cultural crime which makes it different from the crime of passion as a form of ordinary domestic violence because the crime of passion is committed between individuals connected sexually with each other, while honour is committed by male family members such as, father and brothers. Reddy, above n 23, 34. 72
Finally, and based on the universal nature of honour crimes, conceptualizing honour violence as a form of gender-based violence is supported by policies for combating violence against women in other countries, such as Sweden. The Swedish government has an agenda for combating different forms of violence against women within the gender equality framework titled Action Plan for Combating Men’s Violence against Women, Violence and Oppression in the Name of Honour Violence of 2007. It is based on the argument that all forms of violence against women share the same roots across different cultures namely: gender, power and sexuality.178
3.3 The Consequences of Conceptualizing Honour-based Violence as a Form of Gender-based Violence or as a Form of Cultural-based Violence
Some feminists argue that gender equality as defined by the mainstream feminist approach is the most appropriate tool for combating honour-based violence as a form of gender-based violence. There are several benefits in employing the mainstream feminist approach. The first is ensuring belief in the universality of the problem, which means that it is not seen as attached to a certain culture or religion. The second benefit is that it helps local activists to take advantage of accumulative experiences of combating gender-based violence. This is important because combating honour-based violence can only be the outcome of cooperation between the locals and international community.179 However, this approach is often criticized because it is extremely idealistic and difficult to apply in societies where honour is an entrenched practice within social norms. In other words, all cultures share the same roots of patriarchy. However, some societies have made remarkable progress in combating violence against women including honour-based violence, while others are still invoking cultural relativism as an excuse to resist change. This may widen the cultural gap between different societies.
On the other hand, there are three main negative implications of conceptualizing honour-based violence as cultural-based violence and attaching it to a specific culture or religion. First, this raises the possibility of defending honour-based violence as a necessary part of the prevailing culture. The former United Nations Special Rapporteur on violence against women, Radhika Coomaraswamy, argues that conceptualizing honour-based violence as a cultural practice helps to protect it from the scrutiny of
178 Bredal, above n 63, 139. 179 Welchman and Hossain, above n 52, 14. 73 international standards, because it is said to be part of local and religious traditions that must be respected worldwide.180
The second negative implication of the “cultural factor explanation” is that it does not explain why some individuals are more influenced by cultural factors than others.181 Roberts argues that belonging to a specific culture does not mean that everyone of its members will internalize all of its social norms to the same degree, and that internalizing these surrounding social norms is reliant on various factors which are:182
A. The nature of the norms which were relayed by parents during socialization. B. The exposure to other cultural norms. C. Belonging to the sub-group that has its own norms. D. The personal willingness to assimilate the surrounding social norms.
These factors explain why internalization of social norms varies from one person to another. That is, some individuals may internalize all of the social norms, while others are less influenced by them and some totally reject them.183 Focusing on entrenched traditions, customs and religious beliefs means that not enough attention is given to analysing the individual circumstances of perpetrators and victims of honour-based violence.184
The third negative implication of this approach is that it emphasizes the argument that this form of violence is committed only in barbaric and uncivilized societies. This argument involves racism and often Islamophobia. Moreover, conceptualizing honour crimes as cultural crimes prevents activists from seeking help and support from the networks of individuals and organizations that are working toward combating violence against women around the world.185
3.4 Conceptualizing Honour-based Violence in Palestine
Formally, Palestine has adopted a very progressive approach to combating honour- based crimes. At a government level, it has adopted the approach of conceptualizing
180 Coomarawamy, above n 133, xii. 181 Roberts, above n 123, 72. 182 Ibid, 73. 183 Gill, above n 17, 10. 184 Ibid, 9. 185 Ibid; Reddy above n 23, 41-42. 74 honour-based violence as a form of gender-based violence. Cultural relativism has not been explicitly invoked to evade its duties in establishing reform. For instance, Palestine acceded to the CEDAW in April 2014, without any reservations, making it the only Arab state to do so.186
The accession to the CEDAW means that Palestine has to fulfil its legal commitments of combating all forms of discrimination against women including honour-based violence, since honour-based violence is classified as a form of discrimination against women.187 These commitments are illustrated by paragraph 24 of the General Recommendation No. 19 of the Committee on the Elimination of All Forms of Discrimination against Women. For example, Recommendation No. 19 states that:
State parties should ensure that laws against family violence and abuse, rape, and sexual assault and other gender-based violence give adequate protection to all women and respect their integrity and dignity. Appropriate protective and supportive services should be provided for victims. Gender sensitive training of judicial and law enforcement officers and other public officials is essential for the effective implementation of the convention.188
The approach of conceptualizing honour-based violence as a form of gender-based violence which is deeply rooted in patriarchy189 is supported by official policies for combating violence against women in Palestine. For instance, the Palestinian Strategic Plan for Combating Violence against Women from 2011 to 2019 conceptualized honour-based violence as a form gender-based violence. This plan recommended that the application of principles of gender equality is the key solution in combating the honour violence problem.190 It is noteworthy that Chapter Six of this thesis highlights the governmental efforts of promoting gender equality.
186 Jaredat Al-Haya, Al-Ra’ees Yosadek Ala Itifaqat CEDAW (16/4/2016)
4. Conclusion
Honour-based violence is a challenge that many different societies face. Nonetheless, the problem is still seen as intrinsic to some Eastern cultures because of the collective nature of these societies. That is, honour crimes in the East can be committed by all male family members. On the other hand, in the West these crimes are committed by men who are only connected sexually or emotionally to the women involved.
This chapter has shown that the honour-based violence phenomenon cannot be attached to the Eastern culture in the arbitrary manner suggested by supporters of the “cultural factor” explanation. Examination of Arab Penal Codes has revealed that the traditional form of honour crimes which is described as “cultural” no longer exists in law, since most of these Codes have borrowed some elements from the crimes of passion model. Moreover, studying the nature of the provocation defence in some Western countries indicates that honour violence is a universal phenomenon that exists in many different cultures. The fact that some Western countries have not totally overcome the problem of honour-based violence, and the fact that honour-based violence is judicially justified under the name of the provocation defence, support the view that the problem is a universal one that cannot be seen as attached to a specific culture or religion. Consequently, the stereotype of the honour of the East and the passion of the West was rebutted. Abu Odeh summarizes this conclusion by stating that:
Rather than a dividing line separating them, “East” and “West” seem to meet in a circular movement where one becomes the other. The honour of nineteenth-century America is very passion incorporated in the Arab Codes to diffuse and decentre the other legal sensibility lurking in the structure of the Codes- Arab “honour”. This legislative strategy seemed to fail due to the Arab Judiciary’s effort to re-centre Arab honour. The reverse movement in the US, whereby the effort of reform to decentre American honour has been largely successful, American passion unleashed merges with Arab honour released: more women are killed, for provocative acts more numerous, after more time has passed, based on evidence more tentative. The twain East and West, when it comes to violence against women, meet.191
To avoid the disadvantages of the unidimensional cultural approach of conceptualizing honour-based violence and based on the universality of the problem as a form of gender-based violence, feminists argue that honour crimes must be combated with
191 Abu Odeh, above n 59, 305-306. 76 principles of gender equality as defined in mainstream feminist theory. That is because these crimes are deeply rooted in the patriarchal social structure that is entrenched in the legal and social norms of different societies. Combating this social structure is at the core of feminist theory and is central to combating honour-based violence.
The next chapter is dedicated to discussing the different meanings of gender equality in the criminal law process to explore whether combating honour-based violence should be based on principles of gender equality as defined by classic feminist theories (which are described as universal since they are based on the concept of universal sisterhood) or based on gender equality as defined by a different feminist approach. Resolution of this question will support the adoption of a gender equality approach in combating honour- based violence which suits Palestine’s circumstances, and helps to understand the causes of the problem there and its resolution.
77
Chapter Three
The Meaning of Gender Equality in the Process of Combating Honour-based Violence in Palestine
1. Introduction
The stereotype of the passion of the West and honour of the East was challenged in the previous chapter. Consequently, the thesis argues that the universal problem of honour- based violence must be combated with principles of gender equality which conceptualize honour violence as an extreme form of gender-based violence. Fulfilling the legal commitment to combating honour-based violence through the incorporation of principles of gender equality into the legal criminal framework requires studying feminist interpretations of the concept of gender equality and its role in the legal process. The importance of studying these different interpretations stems from the fact that there is continual debate in Palestine among academics, scholars, human rights activists and law reformers regarding the meaning of gender equality and the form that legal reform must take in order to combat honour violence. Frequently asked questions include: Does gender equality mean that discriminatory laws must be abolished? Or does it mean that the biological differences between the two gender groups must be highlighted or ignored? Does gender equality mean that preferential treatment must be given to women? Or does it mean that laws must be gender-neutral and both males and females must be subject to the same rules? Answering these questions represents a crucial step in the process of legal reform to combat honour-based violence in Palestine.
The traditional feminist theory (which claim universality) offer different answers to these questions. That is, they present different definitions of the meaning of gender equality. Each definition of gender equality aims to provide solutions to the problem of inequality between men and women. Accordingly, this chapter discusses the socialist, radical and liberal feminists’ views on women’s oppression and their preferred methods for combating violence against women. These particular feminist theories were chosen 78 because they produce the three main models of gender equality within the context of criminal law: the sameness, differences and distribution of power approaches.1
This chapter also examines the meaning of gender equality according to the intersectional feminist approach. This was studied because it views women’s oppression from a different perspective based on the idea that gender is not the only factor that leads to women’s oppression. Instead, women’s oppression is the outcome of the intersection of different social divisions, such as gender, class, sexuality and race.
The main purpose of this chapter is to answer the following question: What is the meaning of gender equality in the process of combating honour-based violence in Palestine? It also asks: Can traditional feminist theory be applied in diverse cultural contexts to combat honour violence? In order to answer these questions, the chapter is divided into three major sections. The first section is dedicated to exploring the different definitions of gender equality in traditional feminist theory. The second section explores the barriers that impede the implementation of these principles of gender equality in the Palestinian legal system. The gender equality theory that best suits the Palestinian case is discussed in the third section. This section also presents the argument that intersectionality is the best approach for understanding the roots of honour-based violence in Palestine, since it takes account of its cultural, social and political circumstances and all the factors that impede the legal reform process.
2. The Meanings of Gender Equality in Traditional Feminist Theory
Feminist theory as a collection of different ideologies has varying definitions of gender equality. This section discusses the sameness, differences and distribution of power approaches, since Palestinian activists focus on these approaches as potential means of legal reform.2
2.1 The Sameness Approach and the Affirmative Action of Liberal Feminists
Liberal feminists have their own vision for explaining the meaning of gender equality to combat violence against women. The core of this vision is founded on the belief that just society is based on an individual’s rights instead of the socially constructed idea of
1 Dorothy E. Roberts, “The Meaning of Gender Equality in Criminal Law” (1994) 85 Journal of Criminal Law and Criminology 1, 2-3. 2 Nadera Shalhoub-Kevorkian, Militarization and Violence against Women in Conflict Zones in the Middle East: A Palestinian Case-Study (London: Cambridge University Press, 2009) 20. 79 the common good. In other words, the individual rights regime is legitimate because enjoying these rights enables individuals to identify their own personal goods.3 Accordingly, for the purpose of protecting the individual’s rights, the state’s intrusion into the private sphere must be as minimal as possible. In this regard, Tong argues that “the less we see of big brother in our bedrooms, kitchens and bathrooms the better. We all need places where we can be among family and friends, shed our public personae and become our real selves”.4
As a result of celebrating the rights of individuals and protecting the private sphere from state intrusion, the traditional liberal feminists of the eighteenth and nineteenth centuries argued that the right approach to combating the sexual persecution of women was pushing women from the domestic sphere (the sphere of nature) to the public sphere (the sphere of culture and reason). To do this, women must be armed with the necessary tools required to enter the public sphere:5 the proper forms of education and full rights and liberties enjoyed by men.6 In other words, the traditional liberal feminists believed that empowering women with education along with the full rights was the way to put them at the same starting point as men. This would enable them to enter the free market and compete with men, on the one hand, and on the other hand liberate them from men’s oppression.
According to traditional liberal feminist ideology, women’s empowerment with tools, that are believed to make them equal with men, was a justification for treating them the same as men in all aspects of life and ignoring the importance of gender as a factor in matters such as sexual violence. Traditional liberal feminists believed that sexual crimes, such as rape, are gender-neutral crimes. So, these crimes must be defined and regulated via gender-neutral provisions. According to this group of feminists, gender equality represented the “assimilationist ideal” or the “sameness approach”. Their ultimate goal was the elimination of all sex-role differentiation.7
On the other hand, the welfare liberal feminists of the twentieth century argued that “women’s assimilation into the public sphere world must be coupled with the
3 Rosemarie Tong, Feminist Thought: A Comprehensive Introduction (Washington: West View Press, 1989) 11. 4 Ibid, 12. 5 Sandra Walklate, Gender, Crime and Criminal Justice (London: Willan Publishing, 2004) 40. 6 Tong, above n 3, 17-25. 7 Ibid. 80 simultaneous assimilation of men into the private world. Otherwise women will always have to work harder”.8 A result of women having full access to work outside their homes, is that they would become slaves to their husbands in the private sphere, and slaves to their bosses in the public sphere.9 The welfare liberal feminists argued that ignoring the long history of women’s oppression is not the right way to achieve equality between the gender groups. They believed that it was necessary to adopt gender-specific laws instead of gender-neutral laws,10 and to support the state’s intervention in applying the affirmative action as a temporary measure; affirmative action aims to achieve equality for women and strike a balance between the two gender groups,11 by putting men and women on the same starting line.12
Like traditional liberal feminists, the welfare liberal feminists believed in the idea of equal opportunity completely. However, they believed that affirmative action was the main tool for granting equal opportunities to oppressed women. Affirmative action is based on the principle of equal treatment of men and women. For example, the Australian Government added a parenthetical qualification, equal employment opportunity for women, to The Affirmative Action Act 1986.13 Similarly, the European Union permitted forms of “positive action” in the Equal Treatment Directive of 1976.14
Affirmative action is identified in the CEDAW as an important tool for achieving gender equality and combating all forms of discrimination against women. Paragraph (1) of Article (4) of the treaty states that:
8 Ibid, 30. 9 Ibid, 28-29. 10 Ibid, 30-32. 11 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978) 227. “Equal treatment” is different from “treatment as an equal”. Equal treatment means “the right of equal distribution of some opportunity or burden”, while treatment as an equal means “the right not to receive the same distribution of some burden or benefits, but to be treated with the same respect and concern as anyone else”. Dworkin clarifies the distinction between equal treatment and treatment as an equal as follows: “If I have two children, and one is dying from a disease that is making the other uncomfortable, I do not show equal concern if I flip a coin to decide which should have the remaining dose of a drug”. Ibid. 12 The United Nations, The General Recommendation No. 25, on Article (4) Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on Temporary Special Measures(10/4/2016)
Adoption by states parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present convention but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.15
The first General Recommendation in paragraph 1 of Article (4) of the CEDAW, which was adopted in 1988, confirms that “temporary special measures” means preferential treatment.16
2.2 Demolishing the Institution of Family and the Differences Approach of the Radical Feminists17
Radical feminists have their own vision concerning the elimination of all forms of violence against women and have two approaches in defining gender equality. The first approach is that of the libertarian radical feminists who argue that the only way to achieve reform and ensure the application of gender equality is to uproot the patriarchal system and all of its institutions especially marriage and family, the “twin pillars” of patriarchy.18 Consequently, family and marriage have a key role in libertarian radical
15 The United Nations, The General Recommendation No. 25, on Article (4) Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on Temporary Special Measures(10/4/2016)
The second approach of radical feminism is the cultural-radical feminist approach. Cultural-radicals agree with libertarian radicals regarding the necessity of demolishing heterosexual marriage because it is “beyond repair”.22 Their understanding of gender equality is based on highlighting the differences between the two gender groups. Their understanding of gender differences departs from the traditional one which is based on viewing gender differences as an immutable disadvantage for women.23 Radical feminists consider these gender differences as privileges that women can use to emancipate themselves from oppression. For instance, the cultural-radicals view the capacity for reproduction as a means to liberate women instead of enslaving them on the condition that a woman must be the only controller for her individual act of
19 Walklate, above n 5, 43. Server and Yurdakul, Ibid. In this context, Brownmiller argues that marriage was founded on the idea of male’s abduction and rape of the female. Men’s high tendency of rape explains their controlling behaviour that led to entrenching men’s power over women or patriarchy. See Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Open Road Media, 2013) 22- 24. Moreover, Mackinnon argues that “Not just a sexuality that is shaped under conditions of gender inequality, but this sexuality itself is the dynamic of the inequality of the sexes”. Catherine A. Mackinnon, “Sexuality, Pornography, and the Method: Pleasure Under Patriarchy” (1989) 99(2) The University of Chicago Press 314, 318. Finally, Dworkin argues that family structure guarantee that women share their lives with oppressive men who tend to ruin them. Andrea Dworkin, Woman Hating (New York: The Penguin Group, 1974) 23. 20 Tong, above n 3, 50. 21 Walklate, above n 5, 43. See also Tong, above n 3, 5. 22 Ibid, 67. 23 Tong explains the traditional views of gender differences which assume the following (1) people are born with different hormones that make them males or females. (2) Women are disadvantaged because of their reproductive role. (3) Men have the attributes of aggressiveness, harshness, wisdom, rationality, the ability to control emotions and to think logically. On the other hand, women were described as sensitive, tender, emotional, sympathetic, supportive, modest, and unselfish. (4) The role of the society is to keep women always womanly and men manly. Ibid, 3. 83 childbearing. That is, a woman should be the only one who decides whether to use reproduction-controlling methods and assisted reproduction technologies.24
As a result of the cultural-radicals’ celebration of gender differences, they argue that legislators must take into account the psychological and biological differences of the two gender groups. This is in order to guarantee that women receive special treatment25 because they believe in females’ goodness over males.26 This goodness justifies different treatment for women.27 In other words, the different treatment of women in the cultural-radicals’ ideology stems from women’s ideal nature rather than the actual level of prejudice against them from men.
2.3 The Public/Private Dichotomy and the Distribution of Power Approaches of the Socialist Feminists28
The socialist feminists’ definition of gender equality is explained in the following approaches:
24 Ibid, 3 and 51. 25 Katherine K. Baker, “Gender and Emotion in Criminal Law” (2005) 28 Harvard Journal of Law and Gender 447, 447-448. Baker argues that main reason for the criminal laws failing to achieve gender equality is that these laws “failed to appreciate or accommodate complex emotion and recognized simplistic emotion”. According to her, this factor has an important negative impact on combating all forms of domestic violence. Ibid. 26 Walklate, above n 5, 43; Tong, above n 3, 3. 27 Roberts, above n 1, 2. 28 Marx and Engels argue that men’s patriarchal authority over women’s bodies is deeply rooted in the concept of private property. After the emergence of this concept, men tended to believe that women are merely chattel that belong to them. To support his claim, Engels argues that gender relations were balanced in hunting and gathering societies, while the disparity between the two gender groups began to appear only after the human species acquired the skills of agriculture and raising domesticated animals. This new style of life led to the accumulation of wealth which was accompanied by men’s desire to control women’s sexual behaviour in order to guarantee passing their wealth to their biological offspring. So, women have no productive roles outside their homes and they were viewed as vessels of “intergenerational transmission of wealth”. This social analysis led Marxists to believe that women’s emancipation from patriarchy is achieved by giving them the chance to participate in the production process to be economically independent. Additionally, women’s domestic roles must be socialized by demolishing family institutions. However, proletarian women have to face the oppression of capitalism or what Marxists call “women’s true enemy”. Marxism did not develop an advanced and specific theory of women’s liberation; nevertheless, Marxist ideology led to the emergence of socialist feminism. The socialist feminists or the materialist feminists were aware that not only women’s economic class led to their persecution, but also their gender class. In other words, women’s oppression is deeply rooted in patriarchy and capitalism. Server and Yurdakul, above n 17, 976-977. See also Tong, above n 3, 105-106 and 111. 84
2.3.1 The Two-System Explanation of Women’s Oppression (The Public/Private Dichotomy Theory)
Socialist feminists who represent this approach argue that having a dichotomy of public (culture)/private (nature) is problematic. They argue that “women are closer to nature and are yet expected to participate in the cultural process. Women are both a part of, and simultaneously exist outside the social order”.29 They are outside the social order because the private sphere is described as a “non-political” institution. Families have no place in the political theories of justice and the formal legal system.30 Consequently, families have their own justice system that rules the hierarchy of powers within them. This makes honour an important manifestation of this familial justice system. Family’s exclusion from the formal system of justice has a justification in the political theory of justice. According to this theory, the family unit is assumed to be just. Therefore, the internal justice that family enjoys puts it above and beyond the social justice system.31 For instance, some philosophers such as Jean Jacques Rousseau have explained family’s exclusion from the rule of law by arguing that:
Family is unlike any political institution. Family must be established based on love. In this institution that is assumed to be built on affection and love, justice becomes inappropriate since man feels no more concern for his own interest than for that of his fellows.32
According to this view, the virtues of spontaneous love and affection replace the virtue of justice, and justice is transformed from a virtue into a vice within the family institution because it harms family ties.
Excluding families from the rule of law and justice system is grounded in an approach that idealizes families. However, Okin argues that the claim that family is an ideal institution is synonymous with the claim that an ideal society does not require legal regulation; this does not reflect the needs of the real world.33 Therefore, some socialist feminists, such as Juliet Mitchell, argue that the state must penetrate the private sphere of the family to regulate sexuality and reproduction to combat the capitalist oppression
29 Walklate, above n 5, 45. 30 Susan Moller Okin, Justice, Gender, and The Family (New York: Basic Book Publishers, 1989) 8. 31 Ibid, 26. 32 Ibid, 27. 33 Ibid, 29. 85 of women.34 Otherwise, women’s work outside the home will not be helpful in liberating them. Mitchell believes that the state’s attempt to regulate the private sphere is better than trying to demolish it (as radicals and Marxists believe) because demolishing the family institution is not going to eradicate the entrenched patriarchal ideology that lies at its heart.35 In the same vein, Alison Jaggar agrees with Mitchell that the concept of public/private sphere is very problematic. However, Jaggar focuses on the patriarchal oppression of women within the private sphere and argues that the victims of capitalist persecution are working class women, while all women are the victims of patriarchy.36
Based on the above views, this group of socialist feminists argues that justice is an appropriate virtue for the family to overcome the problems of the private sphere. In other words, unlike the traditional liberal feminists who were criticized because of their celebration of the reason of the cultural public sphere and their encouragement of the state’s non-interference within the natural private sphere,37 socialist feminists focus on balancing the two spheres and encouraging the state to govern the private sphere for reform purposes.
Consequently, socialist feminists argue that the “dichotomy between the public and the private spheres is ultimately what the feminist movement is all about”.38 This group argues that the private (personal) sphere is a political one or that the personal is also political, since women suffer because of inequality and segregation in the work place (political sphere) in a similar way to the way they suffer in the private sphere of the family.39 However, challenging the two spheres dichotomy does not necessarily mean challenging the right for privacy; neither does it deny the justification for having two different spheres. The core idea behind objecting to the public/private sphere dichotomy is rejecting the notion of having two concepts of justice applied in these spheres, which leads to a severe state of power imbalance within the private sphere.
This group of socialist feminists justifies the theory of the personal is political, and the claim that family should be governed by the legal system, by arguing that the personal
34 Tong, above n 3, 114. 35 Ibid, 112; Server and Yurdakul, above n 17, 980. 36 Tong, Ibid, 113. 37 Ibid, 37-38. 38 Okin, above n 30, 111. 39 Ibid, 125. 86 life is influenced by “dynamic power” which is one of the most essential attributes of politics. However, power within families is always viewed as natural. Therefore, according to socialist feminists’ analysis, from a cultural perspective violence is legitimatized when the victim is a wife or a daughter because this violence is part of the natural execution of justice that is allowable within the patriarchal family. This group also supports the theory that the personal is political by arguing that the idea of a domestic sphere is assumed rather than defined. Therefore, the domestic sphere and its existence, borders and limits should be defined by a political decision. Ultimately, the theory that the personal is political is supported by the argument that the family sphere is where most of our early socialization takes place, since family is the first school of moral development. Thus, the private sphere has a great influence on the political life.40
2.3.2 The Interactive System Explanation of Women’s Oppression (The Sexual Division of Labour that Leads to Power Imbalance between the Two Gender Groups)
Interactive feminists, such as Iris Yong, Heidi Hartmann and Syliva Walby focus on patriarchy as a cause of gender imbalance. They used the terms “capitalist patriarchy” or “patriarchal capitalism” to understand the root causes of the imbalance of power between the two gender groups.41 According to this group, class per se is a gender- neutral term that describes the relationship between the bourgeoisie and the proletariat which by itself cannot explain women’s oppression. Therefore, it is important to study the interaction between patriarchy and capitalism or the patriarchal aspects of capitalism which lead to the extreme state of gender imbalance between the two genders.
Patriarchal capitalism is embodied in the “sexual division of labour” that leads to a state of power imbalance in the relationship between the two gender groups. The sexual division of labour implies that men are the breadwinners, while women take care of households. This division of labour explains why men are the “primary” workforce and why women are the “secondary” workforce with very modest wages.42 It also explains the power imbalance between the two gender groups in all aspects of life, including the
40 Ibid, 125-133. 41 Iris Yong argues that “we do not need Marxism to explain gender neutral capitalism and another theory to explain gender biased patriarchy. We need a single theory which is a socialist feminist theory”. Tong, above n 3, 116. 42 Ibid. 87 legal process. In other words, the concept of the sexual division of labour constitutes the socialist feminist’s understanding of gender construction.
Sexual division of labour is justified based on the biological and natural differences between the two gender groups.43 However, socialist feminists justify their rejection of the theory of the natural division of labour and the state of power imbalance that emerged from it by arguing that the usage of the words “natural” and “nature” is misleading and has led to irrational conclusions. Okin argues that:
These words are sometimes used to mean the way things should be without human intervention and sometimes used to mean the way things ought to be. These words have been used with such confusion that they become one of the most copious sources of false taste, false philosophy, false morality and even bad law.44
This group argues that the biological differences between the two gender groups must be taken into account in the theory of justice. These differences should not be an excuse for the deprivation of rights, since they do not deny women’s need for justice. In other words, biological differences are a matter of fact that no one can overlook, but they should not be used as a tool to prejudice and suppress women.45 The law must play a significant role in reducing the disadvantages resulting from these differences. In this regard, different treatment of women that is based on the biological differences between the two gender groups is adopted by paragraph 2 of Article (4) of the CEDAW which states that “adoption by states parties of special measures, including those measures contained in the present convention aimed at protecting maternity shall not be considered discriminatory”.46
43 Okin, above n 30, 35. Okin clarifies the argument of Jean-Jacques Rousseau regarding the legitimacy of the sexual division of labour. Rousseau argues that the principle of work distribution is believed to be imposed by nature, so the unjust family is a social and natural necessity. This natural obligation entitled women to be under men’s control since they have natural abilities to endure injustice. In addition; according to nature’s rules, men are very selfish creatures who have no natural desires to be responsible for children, while women naturally want children. To fulfil motherhood’s natural desires, women have to charm men into marriage, and then they have to take care of their needs in order to receive their financial support. Women’s attempts to develop a career outside their own sphere are going to jeopardize their families. Thus, women’s natural place is in the home, where men can apply their own justice system within their own private space without limitations or interference from the state. See Ibid. 44 Ibid, 37. 45 Roberts, above n 1, 3. 46 The United Nations, The General Recommendation No. 25 on Article (4) Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on Temporary Special Measures(10/4/2016)
3. The Obstacles to Applying Traditional Feminist Understandings of Gender Equality within the Palestinian Context
This section explores the implications of traditional feminism’s definitions of gender equality within the Palestinian context. The main impediment to applying these traditional understandings of gender equality is the Islamists’ invocation of “cultural authenticity” as a method to combat Western influence.47 In this regard, Jad argues that the Islamic movement in Palestine modified the meaning of Palestinian nationalism and undermined feminist discourse by describing it as Western and irrelevant to the core elements of the nationalism project.48 Each definition of gender equality also has its own problems and deficits that are clarified in this section.
3.1 The Problems of the Liberal Approach
The assimilation ideal or the sameness approach is associated with equal opportunity,49 which implies that everyone can achieve success through personal efforts, and that benefits should be distributed according to merit. Thus, competitors should have the same starting point.50 However, historically, oppressed women do not have the same starting point as their persecutors, even after obtaining education and full civil rights, and so they are unable to compete equally. To equalize opportunities, the effects of history, background and social conditions must be recognized. Remedial action should also be taken to improve environmental conditions and to guarantee that both sexes have the same starting point and equal opportunity.
Generally, traditional liberal feminism criticises the sexual division of labour as it relegates women to roles primarily associated with the domestic sphere with the result that many women are confined to it. However, it does not offer tangible solutions for rectifying the imbalance of justice within the domestic sphere. This is because the liberal political theory in which liberal feminism emerged considers the domestic sphere
47 Islah Jad, “Feminism between Secularism and Islam: The Case of Palestine, West Bank and Gaza” (2010) Conflicts Forum Monograph 1, 8. 48 Ibid, 11. 49 A group of socialist feminists adopted the approach of “the equal outcome” as a way to create equality between the two genders. This approach is considered a manifestation of the radical socialist theory. For more information see Katherine O’Donovan and Erika M. Szyszczak, Equality and Sex Discrimination Law (London: Oxford University Press, 1988) 6. 50 In this regard, Rosemarie Tong argues that “the traditional liberal feminists require us first to make the rules of the game fair, and second to make certain that none of the runners in the race for society’s goods and services is systematically disadvantaged. Gender justice does not also require us to give the losers as well as the winners a prize”. For more information see Tong, above n 3, 2. 89 as an intervention-free zone. This fact becomes very important in the process of combating honour violence, because the private sphere is where most forms of gender- based violence including honour violence, take place.51 In other words, the sameness approach does not interfere with the state’s avoidance of the private sphere despite the fact that different manifestations of violence against women may take place there. As discussed in Chapter One, different studies show that there is a high possibility that different forms of violent behaviour may occur within families. Thus, the institution of family can be one of the most dangerous places for women. The family may contain many forms of power imbalance and violence for many reasons.52 First, time spent in the family is lengthier than time spent with other groups, which may allow more opportunities for violence to occur among family members. Secondly, family activities may lead to conflicts of interest, and negative feelings such as jealousy and revenge. Thirdly, hierarchical positions within the family give some members the right to set behavioural standards for other family members. Fourthly, age and gender differences among family members can lead to disagreements. Fifthly, family relationships are imposed not voluntary. Sixthly, family members have extensive knowledge about each other (strengths, weaknesses, loves, fears and concerns). This personal information can be exploited in very negative ways and can pave the way for potential conflicts. Finally, families can be subject to pressure for different reasons such as economic circumstances, births, deaths and illnesses.53
Therefore, the sameness approach can have negative implications, if it is not accompanied by extensive reform in the private sphere. The gender-neutral provisions of the sameness approach can be tools that reinforce the idea that women are vessels of men’s honour. For example, Article (285) of the Penal Code No. (16) of 1960 states that the perpetrator of an incest crime and his victim who is above 18 years old are subject to the same incarceration penalty for two years. This article “equalizes” the perpetrator and his victim, without taking into consideration the status of women within their families and the fact that most women do not have the free will to choose whether
51 Ibid, 20-22. 52 For more information see, Sharon K. Araji and John Carlson, “Family Violence Including Crimes of Honour in Jordan: Correlates and Perception of Seriousness” (2001) 7(5) Violence against Women 586, 592-593. 53 Ibid. 90 or not to engage in sexual acts with their immediate family members.54 Therefore, applying the sameness approach when there is a severe case of gender imbalance within families helps enhance the traditional claim that female victims are accomplices in the crime, and should be subject to penalties because they have profaned the honour of their families.
Moreover, the sameness approach is based on the idea of “universal sisterhood”.55 However, its application demonstrates that the traditional liberal feminist approach is designed for middle-class white women.56 Thus, it reflects a high level of cultural blindness. For instance, according to the sameness approach, wives and girlfriends are the main subjects of persecution and the rights of sisters, daughters and mothers are ignored. This is due to the fact that the structure of Western individualistic societies is different from the structure of Eastern collectivist societies.
Consequently, in the process of combating honour violence, the sameness approach was partially applied to wives while other categories of women such as sisters, daughters and mothers were not considered. For instance, legislators in Jordan have tried to incorporate the sameness approach into the Penal Code to help eradicate the honour- based violence problem by giving the wife who catches her husband “red-handed” committing adultery the right to kill him and his partner. As discussed in Chapters One and Two, this legal modification took place by a Royal Decree No. 86/2001 (a provisional law) and was approved by the Jordanian Parliament and issued in the Law No. (8) of 2011.57
The modified Article (340) of the Penal Code states:
1. He who surprises his wife or one of his immediate females in the act of committing unlawful sexual intercourse or in unlawful bed with somebody and kills, wounds or injures one or both of them shall benefit from the mitigated excuse
54 Khadeja Hussein Nasir, “Incest: Murder of the Soul” (A Report of the Independent Commission for Human Rights, 2012) 37-40. 55 Ravi K. Thiara and Aisha K. Gill, “Understanding Violence against South Asian Women” in Ravi Thiara and Aisha K. Gill (eds), Violence Against Women in South Asian Communities: Issues for Policy and Practice (London: Jessica Kingsley Publishers, 2010) 32. 56 Judy Kimble and Elaine Unterhalter, “We Opened the Road for You. You must go Forward: ANC Women’s Struggles 1912-1982” (1982) (12) Feminist Review 11, 11-16. In the same context, Tong argues that the sameness approach was designed for a group of elite women who are white, middle-class, heterosexual, and well-educated. See Tong, above n 3, 202. 57 United Nations Human Rights Office of the High Commissioner, The Jordanian Annual Report Submitted to the Committee on the Elimination of All Forms of Discrimination against Women on 13thMarch 2012 (10/4/2016)
2. The wife shall benefit from the mitigation if she surprises her husband committing adultery or in unlawful bed in the spouse’s house and kills or wounds her husband or his partner or both of them.
This new approach of giving wives the same rights of killing as husbands, while ignoring the protection rights of sisters, daughters and mothers, highlights the internal tension of these legal provisions. For instance, paragraph 1 of the modified Article (340) is closer to the idea of honour, while paragraph 2 of the same article represents the idea of passion. In other words, Jordanian legislators incorporated the sameness approach into the legal system without taking parallel steps to eradicate honour in the broader context of the private sphere of the family. This marginalizes the rights of other categories of women within family structure and supports the argument that the sameness approach is a mechanism designed to obtain justice for abused wives only, although daughters and mothers are the primary victims of honour-based violence in the Middle East. The principles of the sameness approach as a mechanism to achieve justice for oppressed wives help attach honour-based violence to Middle Eastern societies because they enhance the collective nature of the crime. Orientalists consider this to be the main obstacle against the incorporation of honour violence into the mainstream feminist agenda for combating violence against women.
The welfare liberal feminist’s affirmative action approach has become more universal since it was incorporated into the CEDAW. The affirmative action approach is criticized by some scholars, such as Bacchi, because it presumes that the social order is just, and that the problem of inequality is limited to a group of people who need “special help” to be put on even ground with the dominant group. According to Bacchi, this conceptualization of affirmative action indicates that the privileges of the dominant group are “invisible”.58 This means that the status quo remains unchallenged, although it is important to highlight and question the process of “socio-cultural hegemony” within the dominant group in order to achieve reform. In other words, it is important to understand the various manifestations of patriarchy before any attempt at reform. However, the affirmative action policy presents a solution without understanding the roots of the problem, despite the fact that remedies for the problem of honour-based violence should not have been chosen until after an evaluation of the level of persecution to which women were exposed. In this regard, Bacchi argues that:
58 Bacchi, above n 13, 134. 92
I suggest one way to understand what is represented to be the problem. This position starts from the premise that policy problems do not exist separate from their representations. It also contends that an examination of postulated policy solutions will reveal what is represented to be the problem. Representation of a problem must then be closely examined to see what assumptions underpin different representations, what effects follow from them, and how subjects are constituted within them. Crucially we need to reflect upon what is left unproblematic, what is likely to change and what likely to stay the same. The understanding of the affirmative action shows the problem as the social and cultural “backwardness” of particular social groups. Special measures are to be allowed in order to drag these groups to some assumed state of the desirable social group. Within this framework it becomes impossible to question the standards applied to those currently holding positions of power and authority.59
3.2 The Problems of the Radical Approach
Although the libertarian radical feminists concentrate on problems within the domestic sphere, where honour violence takes place, it is very difficult to adopt their stance in the process of combating honour in Arab societies in general, and in the Palestinian context in particular. This is because their approach is unrealistic within collective societies where family units have special importance. As discussed in Chapter Two, anthropologists argue that Middle Eastern societies did not totally transform from tribal societies into civil societies based on the idea of strong and liberated individuals.60 Although these societies have been subject to change in the last few decades, families (which emerged from tribes) are still the core and central unit of these societies in all aspects of life. Kevorkian argues that in some societies, families are playing the role of social institutions found in modern states by providing support and services to each of the individuals in them, such as protection, financial aid and sometimes employment.61
The approach of the cultural-radicals that is based on celebrating gender differences or “pluralistic ideals” is still vague. The ambiguity of the concept of psychological and biological differences between genders makes this an unresolved issue in feminist theory. This is due to the ambiguity of the notion of women’s “idealism”.62 Moreover,
59 Ibid, 131. 60 Richard T. Antoun, “Civil Society, Tribal Progress and Change in Jordan: An Anthropological View” (2000) 32 International Middle East Studies 441, 443. 61 Nadera Shalhoub-Kevorkian, “Researching Women’s Victimization in Palestine: A Socio-Legal Analysis” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence against Women (New York: Zed Books, 2005) 163. 62 O’Donovan and Szyszczak, above n 49, 3. See also Walklate, above n 5, 43. See also Thiara and Gill, above n 55, 33. Feminists have not decided yet how to treat women “differently and equally”. Some of them argue that this approach is similar to the approach of “separate but equal” that was used in the 93 the biological differences approach does not constitute a framework that helps to understand the structure of the social hierarchy because it focuses on explaining the nature of the oppression of women rather than focusing on the social factors that have caused that oppression. Roberts argues that:
The biological explanations of crime tend to do precisely the opposite. They divert attention away from the political causes and the meaning of the crime. The biological explanations for crime depoliticize social conflicts and make official restraint of disenfranchised groups seem natural and inevitable. Differences focus exclusively on why individuals acted in a way that society deem criminal, rather than considering why society defines their conduct as criminal. As a result of that, the biological explanation for crime often point to the wrong solution for crime. They cast offenders as victims of a biological fate, rather than agents acting in a social and political context.63
Finally, similar to the sameness approach of liberal feminists, the differences approach of the cultural radical feminist’s is “internationalistic” so it reflects a high level of blindness to cultural differences.64 It is also designed to restore justice to abused wives and girlfriends but fails to acknowledge the fact that the abused women can also be mothers, sisters and daughters, the main victims of honour-based violence in Middle Eastern societies.65 As a result of this “cultural blindness” Bredal argues that some concepts of gender equality such as the differences approach can be an “exclusionary mechanism” or a “signifier” of national belonging between “us” and “them,” or between the majority group of a Western nation and its others (the minorities).66
United States to justify racial discrimination until the early 1960s. For more information see Tong, above n 3, 32 and 36. 63 Roberts, above n 1, 9-10. 64 Lama Abu Odeh, “Comparatively Speaking: The Honour of the East and the Passion of the West” (1997) Utah Law Review 287, 306. 65 Ibid. 66 Anja Bredal, “Ordinary v. Other Violence? Conceptualizing Honor-based Violence in Scandinavian Public Polices” in Aisha K. Gill and Carolyn Strange et al (eds), ‘Honour’ Killing and Violence: Theory, Policy, and Practice (London: Palgrave Macmillan, 2014) 137. In this regard, Carbin argues that “within only a couple of years the policy field on violence against women was dominated by the initiative on honour related violence. The explanation given for the problem focused primarily upon the question of culture and values-not that of men’s violence against women. Thus, there was one policy targeting men’s violence against women and another focusing upon honour related violence, drawing a distinction between the violence committed by Swedish men and that committed by immigrant men”. Maria Carbin, “Honour Related Violence” in Eva Magnusson and Malin Ronnblom et al (eds), Critical Studies of Gender Equalities: Nordic Dislocations, Dilemmas and Contradictions (Stockholm: Makadam Publishers, 2008) 28. 94
3.3 The Problems of the Socialist Feminism Approach
Socialist feminists’ reformative vision has had to face post-modern feminists’ criticism. The origin of this criticism is that some socialist feminists have a single “stand point” to understand the oppression of women. According to the post-modern feminists, summarizing women’s oppression in one story is a masculine approach, because each society has its own social relations that make it different from other societies.67 This means that understanding the mechanisms of injustice requires attention to the operation of the law within the context of particular social circumstances.68 The socialists’ specific approach for understanding the origins of women’s persecution becomes clear when they discuss the conflict between capitalism and the proletariat as the main reason behind the oppression of women. Finally, the theory of the sexual division of labour is criticized because it supports the assumption that women’s oppression is deeply rooted in their biological nature rather than in their surrounding social structure;69 it also bases women’s oppression on one dimension: gender construction. However, it has been argued that women’s oppression is a multidimensional problem which can be the outcome of the interaction of different social divisions such as gender, in addition to class, sexuality, age, and race.70
In summary, the cultural blindness resulting from the universal nature of the traditional meanings of gender equality in the legal process has a negative impact on combating honour violence. In other words, despite the fact that these traditional definitions claim universality, the culturally blind solutions that they present enhance the claim that honour-based violence is a cultural crime attached to particular cultures. This means that universal approaches have the same end result as unidimensional approaches. In this context, Philips summarizes the critique of the universal approach:
The call for cross-cultural global rights obscures cultural variations. It does not seem to take into consideration that the bases of justice are always relative to the particular society which devised them, reflecting the particular values and practices of that society. There is no general truth beyond the local context.71
67 Walklate, above n 5, 46. 68 Roberts, above n 1, 3. 69 Nira Yuval-Davis and Floya Anthias, “Contextualizing Feminism- Gender, Ethnic and Class Divisions” (1983) (15) Feminist Review 62, 63. 70 Tong, above n 3, 202. 71 Anne Phillips, Engendering Democracy (Cambridge: Polity Press, 1991) 119. 95
Thus, it can be concluded that: gender equality as defined by classic feminism is not suitable for application in the Palestinian context; and honour violence must be conceptualized based on a new feminist approach in order to avoid the disadvantages of the unidimensional approach and the cultural blindness of the universal approach. In other words, honour violence is a problem that manifests itself in culturally specific ways. While the problem remains universal, its symptoms are contextual. Accordingly, the process of combating honour violence requires adopting a feminist approach which views the problem as universal and, at the same time, takes into account the unique cultural aspects of each society without attaching these crimes to a specific culture or religion. The next section outlines such an approach.
Finally, highlighting the shortcomings of the various definitions of gender equality in the legal process explains why the efforts of Palestinian NGOs to incorporate gender equality principles into the legal process have failed. According to some scholars, such as Kevorkian, these definitions are purely academic and do not provide a deep analysis of Palestinian women’s struggles.72 Moreover, shedding light on the loopholes of affirmative action in the CEDAW explains why the convention is not effective in combating honour-based violence, despite the fact that it has classified honour as a form of violence against women.
4. The Theory of Gender Equality to Combat Honour-based Violence in Palestine
The approach of conceptualizing honour-based violence as a form of cultural violence assumes that honour violence is attached to certain cultures in particular. This unidimensional approach has a number of disadvantages, such as enhancing the idea that honour-based violence problem is unsolvable and intrinsic, since it is deeply entrenched within the culture of the societies in which it occurs. On the other hand, the approach of conceptualizing honour violence as a form of gender-based violence assumes that the problem is universal and takes place in both Eastern and Western societies. Therefore, it must be combated with the principles of gender equality as defined in mainstream feminist theory. Accordingly, the first section of this chapter discusses the definitions of gender equality in traditional feminist theory.
72 Kevorkian, above n 2, 20. Kevorkian describes the Palestinian women’s rights NGOs as “non-profit industrial institutions”. According to Kevorkian, most of these institutions are blindly following the visions of the Western donors. Ibid. 96
The second section of this chapter highlights the shortcomings of the traditional definitions in combating honour violence. It demonstrates that the different traditional definitions of gender equality are culturally blind and encourage “collective victimhood”. It is true that the problem of honour-based violence is universal; however, women do not share a common universal experience, or what is called “collective victimhood”. Thiara emphasizes that collective victimhood has very negative implications for combating violence against women, including honour-based violence, because it leads to authorities’ lack of attention to the specific issues of each cultural setting.73
Accordingly, the unidimensional approach of conceptualizing honour violence as a cultural problem must be totally rejected because it is based on accepting a single explanation for the phenomenon. The traditional mainstream feminist definitions of gender equality are also insufficient because each definition gives a single solution to the problem and condones the differences between social relations within different societies. As a reaction to this, and in order to prove that feminism is not exclusive to Western culture, post-colonial feminism combined the cultural and the universal dimensions of these arguments. This feminist approach empathizes with universal sisterhood while also seeking to understand the cultural surroundings of each community.74 This innovative approach paves the way for the creation of a feminist theory that finally takes into account the cultural barriers facing the concept of gender equality.75
In other words, feminist theory has a new vision of reform based on understanding the factors that transformed criminal law into a tool used to disadvantage women for the sake of protecting men’s interests. Drafting a criminal law with a feminist vision requires understanding the context in which these rules operate. In this regard, Gill argues that honour violence is universal. However, the causes of the problem differ, and combating the phenomenon requires an understanding of the cultural surroundings of
73 Thiara and Gill, above n 55, 43. 74 Tong, above n 3, 228. See also Lama Abu Odeh, “Post-Colonial Feminism and the Veil: Thinking the Difference” (1993) (43) Palgrave Macmillan Journals 26, 29. 75 According to the postcolonial feminism approach, the East/West and South/ North divisions negatively affect the perception of the “common human nature”. They argue that “we must deconstruct the one, so people can be themselves not the other. Natural and cultural diversity is a precondition for the maintenance of life on the planet”. Tong, above n 3, 228. 97 each society.76 Bredal also argues that “the different ways in which women’s and men’s sexuality are perceived is crucial to an understanding of the structure and mechanism of the violence, both as regards men’s violence against women in general and violence and oppression in the name of honour”.77 Moreover, Sen states that incorporating principles of gender equality into the legal system requires a careful assessment of the surrounding environment to choose the most suitable approach to applying gender equality within each cultural setting.78 Finally, Thiara and Gill argue that the differences between the different social relations must be tackled within a dynamic framework rather than a static one.79
Incorporating principles of gender equality into the Palestinian legal framework requires assessing and understanding the surrounding cultural and socio-political conditions, because Palestinian society has unique social relations which makes it difficult to rely on one universal solution to the problem. It is important to highlight the fact that the differences between societies should not be viewed as simply different experiences. They should be viewed as different social relations that are transformed into different forms of oppression.80 For instance, it was discussed in Chapter Two that judges in the USA have applied the extreme emotional distress principle or the reasonable man approach to avoid applying the common law of adultery that represents a passion model. At the same time, Jordanian and Palestinian judges are applying Article (98) of the Penal Code to avoid applying Article (340) which contains some elements of the crime of passion. The outcome may seem similar, but, the actual reasons that push judges in these different countries to apply the traditional concept of honour are heavily reliant on their surrounding context.
The search for a gender equality approach which is dynamic, and which can absorb different cultural backgrounds, has identified two progressive visions. The first is the vision of Dorothy Roberts, an American scholar, and the other is the vision of Rashida
76 Aisha K. Gill, “Introduction: Honour and Honour-based Violence: Challenging Common Assumptions” in Aisha K. Gill and Carolyn Strange et al (eds), Honour Killing and Violence: Theory, Policy, and Practice (London: Palgrave Macmillan, 2014) 4. 77 Bredal, above n 66, 139. 78 Purna Sen, “Crimes of Honour, Value and Meaning” in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence against Women (New York: Zed Books, 2005) 50. 79 Thiara and Gill, above n 55, 33. 80 Ibid, 35. 98
Mangoo, the former UN Special Rapporteur on Violence against Women between June 2009 and July 2015.
Roberts argues that “it is impossible to define a grand feminist theory that will produce an egalitarian criminal justice system”.81 Instead, Roberts identifies the main guidelines which must be taken into consideration in the process of incorporating principles of gender equality into the process of criminal justice.82 First, “gender equality requires understanding the political nature of commission and definition of the crime. Secondly, gender equality should search beyond the appearance of preferential treatment to reveal the deeper biases in the law”. Thirdly, gender equality must take into consideration factors such as class and race, in addition to gender.83 The outcome of applying these guidelines is a model of criminal law with a feminist vision of criminal justice.
Mangoo issued a thematic report in 2011 about the causes and the consequences of violence against women. In her report, Mangoo presents a framework to combat all forms of violence against women including honour-based violence. The proposed framework suggests that rights should be viewed as universal. It also states that individual and institutional discrimination must be taken into consideration, and that social and economic hierarchies must be analysed.84
Combining these two visions produces an approach with three elements:
First, the framework of the UN Special Rapporteur fits Robert’s guidelines about the meaning of gender equality. That is, both emphasize the fact that the social structure must be well understood because this understanding is key to the process of incorporating principles of gender equality into the legal framework. This explains why the former Special Rapporteur emphasizes the importance of analysing hierarchies. It also explains why Roberts stresses looking beyond preferential treatment, since affirmative action is not based on understanding the status quo.
Secondly, both visions focus on understanding social and economic hierarchies. In other words, both visions highlight “multiple oppressions” and the intersectionality between hierarchies. Roberts emphasizes taking class (economic) and gender (social)
81 Roberts, above n 1, 14. 82 Ibid, 8-12. 83 Ibid. 84 Gill, above n 76, 12. 99 factors into consideration, while the former Special Rapporteur explicitly highlights the importance of studying the social and economic factors.
Thirdly, it is important to understand the different manifestations of persecution at the social level (social violence). However, it is also important to understand discrimination at the institutional level (state violence). The former Special Rapporteur explicitly notes the importance of understanding institutional discrimination. Roberts emphasizes understanding the manifestations of gender discrimination within legislative institutions by analysing the political nature and the definition of the crime.
This vision is also supported by the report of the United Nations’ Experts Team Concerning Killing Women of 2014 which emphasized the need to recognize that the causes of such violence are various and are based on different political and cultural contexts.85
In the same context and with reference to Palestine, Kevorkian argues that “Palestinian women’s voices should never be analysed without a close examination of the intersection between Israeli violence, social patriarchy, nationalists’ ideologies and the various layers of oppression within this situation”.86 Moreover, the Palestinian Strategic Plan for Combating Violence against Women from 2011 to 2019 states that the phenomenon of violence against women is intersectional and has no specific shape or form.87
Obviously, the common ground between these visions is that all of them affirm the importance of studying the intersectional social relations of each unique society. This approach is at the centre of intersectional feminist theory which provides a framework for studying all forms of violence against women based on the fact that gender-based violence is a universal phenomenon that may take place in different societies. However, it emphasizes the importance of studying social relations without attaching a specific phenomenon to a certain culture. In other words, intersectionality avoids the shortcomings of the two main approaches of conceptualizing honour-based violence. It
85 “Killing Women based on a Sexual Motive: Promising Practices, Challenges and Practical Recommendations” (A Report of the UN’s Experts Team Concerning Killing Women, Bangkok, 11-13 November 2014) 3. 86 Kevorkian, above n 2, 21. 87 Al-Itihad Al-Am Li Mar’a Al-Falestinya, Al-Khota Al-Istratejya Li Mokafhet Al-Onof Deda Al-Mar’a men 2011 ela 2019, 7 (16/4/2016)
The intersectional feminists criticize the sameness and differences approaches because both of these approaches fail to understand that placing too much emphasis on both people’s similarities or differences can lead to oppression.88 The intersectional feminist approach is derived from black feminist scholarship.89 In this context, Crenshaw, in her prominent article Mapping the Margins: Intersectionality, Identity, Politics and Violence against Women of Colour,90 powerfully drew intersectionality to public attention by focusing on the impacts of the intersectional forms of oppression on the rights of black women, specifically in the legal process. However, Davis argues that the intersectionality approach can also be used to study the oppression of women from other racial backgrounds.91 In this regard, intersectional feminists suggest that:
Since the late 1970s, women’s studies have emphasized the differences between women, challenging the assumed homogeneity and universalism inherent in claims of sisterhood. Instead they stressed the complexity of oppression which women experience in gendered ways, race, ethnicity, class, nation, disability, age and sexuality.92
Intersectional feminists also argue that different experiences are viewed as an experimental diversity, while no one developed an approach that elucidates the effect of intersection of the social factors in given contexts.93 Reference to this point of view, Thiara and Gill argue that:
To simply focus on different experiences (differences as experimental diversity) does not help to illuminate the process that produces or results in specific forms of subordination. Though some have argued that experiences open the space for investigating similarities and contradictions in women’s lives
88 Tong, above n 3, 204. See also Kimberle Williams Crenshaw and Sumi Cho et al, “Toward a Field of Intersectionality Studies: Theory, Application, and Praxis” (2013) 38(4) Journal of Women in Culture and Society 785, 787. 89 Katherine Castillo Jones and Joya Misra et al, “Intersectionality in Sociology” (2009) Gender and Society 1, 1. 90 Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Colour” (1991) 43(6) Stanford Law Review 1241. 91 Davis and Anthias, above n 69, 63. 92 Thiara and Gill, above n 55, 32. 93 Ibid, 36. 101 and to develop theories to understand these collectively. We see experience as useful data rather than the truth which requires no explanation. We need to shift the focus from differences simply as experience to differences as social relations, which translate differences into oppression.94
Consequently, intersectional feminists’ views are based on developing a basic understanding of each society and considering “cultural and structural sensitivities, stressing multiple intersectional differences and power dimensions, including the perpetrators and victims’ socio-economic, racial, cultural, and religious backgrounds”.95
Intersectional feminists agree on three main principles of intersectionality.96 First, the fundamental social divisions that intersect with each other are race, gender, class and sexuality. Secondly, the interaction of these elements creates a unique experience and shows the multiplicative nature of oppression. Thirdly, “Hierarchies intersect at all levels of social life, both through social structure and social interaction”.97
Based on these principles, intersectional feminists provide guidelines for analysing social divisions. Some argue that the social divisions of intersectionality must be analysed separately. Others argue that the interrelationship between these social divisions must be analysed to understand their impact on particular women in specific historical eras.98 This is because “being oppressed is always constructed and intermeshed in other social divisions”.99 Consequently, there are two intersectional approaches to analysing the social divisions. The first is the additive model which is criticized for being too descriptive and narrow since it does not move beyond experimental social identities.100 The second approach is constitutive intersectionality which suggests that social relations must be analysed separately as well as in interaction with each other.101 Thiara argues that constitutive intersectionality is more universal and provides for an anti-racial approach.102 Accordingly, the constitutive intersectionality approach is used in this thesis to analyse social relations within the Palestinian context.
94 Ibid, 34-35. 95 Bredal, above n 66, 138. 96 Thiara and Gill, above n 55, 37-38. 97 Ibid. 98 Ibid, 38-39. 99 Ibid, 39. 100 Ibid, 40. 101 Ibid. 102 Ibid, 42. 102
Based on the above discussion, it can be concluded that, according to the political theories of justice and the theory of public/private dichotomy, the meaning of justice is different in the public and private spheres. In this regard, in honour violence cases, the state is complicit with families in allowing this form of violence. Therefore, honour violence is the outcome of interactions between family, social and state violence.103 In this thesis, the intersectional divisions and power dynamics in the Palestinian social structure are examined to understand the nature of the interaction between social, family and state violence that affects the legal process.
As discussed in Chapter One, criminal law can be a tool that aids in the eradication of all forms of violence against women, including honour-based violence.104 However, in order to transform criminal law into an efficient tool for combating honour-based violence, the impacts of the intersection between social, family and state violence on the legal system must be analysed to understand the influence of power imbalance in the legal process. This thesis studies the intersection between social, family and state violence through the analysis of the social divisions of gender, class, and ethnicity within the different nationalism projects.
Chapter Four discusses the nature of this intersection, and the ways in which it is embodied in the legislative and judicial structures are studied in Chapters Five and Six respectively. Finally, any attempt at legal reform must take into consideration the intersections between family, social, and state violence. Therefore, reform recommendations must consider the prejudice against women that is caused by the interaction between social divisions. Accordingly, Chapter Seven proposes legal reform solutions including mechanisms to penetrate the private family sphere with new legal regulations. Reform measures would be stripped of value if they did not insist on applying the concept of rule of law to the private sphere of the family. The following diagram summarizes the above discussion. The following figure summarizes thesis’ vision of legal reform.
103 Abu Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies” (2010) 2 Comparative Law Review 2, 2. 104 Lois Bibbings “Human Rights and the Criminalization of Tradition: The Practices Formerly Known as Female Circumcision” in Peter Alldridge and Chrisje Brants (eds), Personal Autonomy, The Private Sphere and Criminal Law (Portland: Hart Publishing, 2001) 144. 103
Figure 1: Thesis’ Vision of the Legal Reform Process
104
5. Conclusion
The principles of gender equality have different meanings: the differences, sameness, and distribution of power approaches. Traditional liberal feminism is concerned mainly with the “sameness approach”. This approach cannot be applied in the Palestinian context because it focuses on reforming the public sphere without focusing on reforming the private sphere where domestic violence including honour crimes usually occur. It is also inadequate because it addresses white, middle-class women, and ignores the fact that women may not want to be the same as men.
Unlike liberal feminists, radicals are concerned with the domestic sphere. They argue that the private is political by seeking to demolish the private sphere of the family rather than reforming it. The radical feminist framework is unrealistic and cannot be applied in Palestine, because the family has a distinctive status in Palestinian society as the fundamental building block of society. In addition, the “differences” approach of the cultural radicals is still an unresolved issue in feminist theory.
Finally, the socialist feminism framework focuses on reforming the private sphere of the family. It has two different explanations for the origins of patriarchy and honour violence. The first is the problematic dichotomy between the public/private spheres, and the second is the problematic distribution of power between the two gender groups. The socialist feminism reformative vision is as problematic as the differences and sameness approaches because of its narrow scope.
The idea of the “universal sisterhood” is not only problematic but controversial since every struggle has its own specific context. It is true that honour-based violence is conceptualized as a form of gender-based violence that can only be combated by incorporating principles of gender equality into the legal process. However, combating this form of violence requires a specialized understanding of its surrounding social relations. It is important to apply a gender equality approach that takes into account the unique conditions of each society. Consequently, the theoretical framework for this thesis is based on intersectional feminist theory which draws attention to cultural and structural sensitivities. The importance of utilizing this theory stems from the fact that the Palestinian context has its own unique attributes, such as the succession of political regimes, the prolonged occupation and the Islamization of the honour concept in legal
105 practice. These factors are studied in the next chapter in order to understand the nature of the social infrastructure that must be considered when studying the various manifestations of honour-based imbalance in the legal process (Chapters Five and Six). Remedial steps are discussed after first understanding the current status quo. Accordingly, reform recommendations are outlined in Chapter Seven.
106
Chapter Four
Understanding Structural Intersectionality in the Palestinian Social Structure
1. Introduction
The thesis argues in Chapter Two that the problem of honour-based violence is a universal one that cannot be seen as attached to a specific culture or religion. Consequently, the unidimensional approach is not an ideal one to address this problem. Feminists argue that a strong conception of gender equality is required to do so. Chapter Three considered a number of definitions of gender equality in feminist theories and concluded that the ideal approach to combat the phenomenon of honour-based violence is one which lies between the unidimensional and the culturally blind universal approaches. In other words, the preferred approach involves taking the surrounding cultural context into consideration without assuming a relationship between it and the problem.
Understanding the nature of honour-based violence that is embodied in legislative and judicial practices in Palestine requires first understanding the nature of women’s oppression in family and social spheres, and how social and family violence intersect with state violence. The intersectional feminist approach is the tool that has been chosen in this thesis to analyse social relations in the Palestinian context. This context is complex and influenced by many social factors because Palestine has been under the rule of different political regimes since 1917 and is still experiencing a prolonged occupation. This makes the Palestinian experience different from any others in the Arab world. The intersectionality approach attributes women’s oppression to the intersection of different social divisions, mainly gender, class, race and age. In this chapter, the intersection of these social divisions is studied from a Palestinian perspective, to understand the various manifestations of family, social and state violence.
This chapter serves as an introduction to the following chapters which are concerned with the status and treatment of honour crimes in legislative and judicial processes. It answers the question: What are the manifestations of intersectionality in the Palestinian social structure that are relevant to understanding and addressing honour-based
107 violence? The chapter consists of two main sections. The first section outlines the methodology for analysing social relations based on the intersectionality approach. The second section applies the intersectionality approach to the Palestinian case by analysing the intersection of social categories in the Palestinian social structure, to explore the various manifestations of oppression experienced by Palestinian women.
2. Introduction to the Analysis Method of the Intersectionality Approach
This section highlights the basics of the intersectionality approach: the levels of intersectionality analysis; the necessary components of analysis or the intersectional social categories/divisions; and the arenas that are subject to the intersectionality analysis. The main purpose of this section is to provide an introduction for the second section of the chapter that deals with the application of intersectionality in Palestine.
2.1 Intersectionality Levels of Analysis
It was noted in Chapter Three that Crenshaw recognized the effects of overlapping forms of oppression in the legal process. Crenshaw was one of the first socio-legal theorists to examine the impacts of intersectional social relations on the legal process and use the intersectionality approach to understand the nature of legal structures. This approach has influenced legislation and policies for combating violence against women in some countries, such as the UK, because it has been considered the most appropriate tool for studying the multidimensional forms of social relations.1 Studying intersectional social relations to understand the overlapping forms of oppression requires conducting analysis on three different levels.2
2.1.1 The First Level of Abstraction: Identifying the Social Ontologies (Categories/ Divisions)
Identifying social ontologies provides maps and guidelines that highlight where various sets of social relations exist within societies and how the world is arranged and organized. This organization is embodied in the different social categories that interact with each other.3 In other words, the main purpose of identifying social ontologies is to conceptualize the way in which people are placed within the social structure. Social
1 Floya Anthias, “Intersectional What? Social Divisions, Intersectionality and Levels of Analysis” (2012) 13(1) Ethnicities 3, 5. 2 Ibid, 6-10. 3 Ibid, 6-7. 108 ontologies function at two different levels; these are the abstract and the concrete levels. In the intersectionality approach, social ontologies include the categories of gender, ethnicity “race”, class, sexuality, age and disability.4 In this regard, Mann tracked the path of patriarchy historically and cross-culturally. He identified and traced the interaction of specific factors that have influenced gender hierarchical relations throughout modern history: gender, social class, nations and nation states.5 Some of these categories may be relevant to a studied case, others may not. Additionally, in some cases different divisions might be introduced.
2.1.2 Second Level of Abstraction: Defining the Social Categories as Categories of Discursive Practice in the Making of Boundaries and Hierarchies.
At this level of analysis, the meanings of social categories are understood separately. Patricia Hill Collins argues that “intersectionality cannot proceed only with the axiom of the mutual constitution of categories par excellence but has also to deal with the functioning of the categories separately as salient aspects of discourse and practice”.6
This step is essential to understanding the intersection between these social categories/divisions in the third level of analysis. The social divisions which are subject to analysis are irreducible. In other words, these social divisions are the smallest units of analysis and they cannot be broken down any further. However, the irreducibility of the social categories does not mean that they function alone in the realm of social life.7 At this level of analysis the commonalities and differences between the different social categories can be highlighted, because these social categories have separate historical bases, and all have roles in the boundary-making and hierarchy-making processes.8
2.1.3 Third Level of Abstraction: Concrete Social Relations
Crenshaw argues that “in the context of violence against women, this elision of difference in identity politics is problematic, fundamentally because the violence that many women experience is often shaped by other dimensions of their identities such as
4 Ibid. 5 Valentine M. Moghadam, “Patriarchy in Transition: Women and the Changing Family in the Middle East” (2004) 35(2) Journal of Comparative Family Studies 137, 141. 6 Anthias, above n 1, 8. 7 Ibid. 8 Ibid, 7. 109 race and class”.9 This argument is considered to be at the core of the intersectionality approach since the social categories intersect with each other in real life to produce complex social relations.10 Accordingly, after identifying the social categories, the intersection of these components of analysis is examined to understand the nature of social relations that result from the intersection of the social categories. At this stage, it is important to differentiate between the social categories (as a form of categorization of populations) and the social groupings, since certain groupings can be the outcome of the intersection of the different social categories. For instance, an ethnic groups’ formation can be the outcome of intersection between class and gender categories.11 Finally, the social relations that are the outcome of the intersection of different social categories cannot be assumed. Each intersectional process has a different outcome.
2.2 The Arenas of Intersectionality
The intersectional framework is useful if four main steps are followed:12
1. The different social categories must be identified. 2. The concrete social relations that are embodied in the intersection of the social categories must be clarified. 3. The arenas of investigation must be identified. 4. The outcome of the intersection process must be identified.
Concrete social relations are embodied in specific social arenas. Each arena represents a context in which social categories can intersect.13 Identifying the arenas where the intersection between social categories takes place is helpful for identifying the issues that need to be highlighted in each domain.14 According to Anthias, the social arenas that can be examined in concrete social relations or embodied practices are the following:15
9 Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Colour” (1991) 43(6) Stanford Law Review 1241, 1242. 10 Anthias, above n 1, 8. 11 Ibid, 9. 12 Ibid, 14. 13 Ibid, 10. 14 Ibid. 15 Ibid, 11. 110
• The organizational structure: This focuses on the position of the population categories in institutional frameworks such as: family, society, and the legal system. • The representational discourses: These focus on the texts and the documents that revolve around the social divisions within the various institutional frameworks. • Intersubjective (practices): These focus on practice in relations to others including non-person actors, such as police and security agencies.
On the other hand, Crenshaw distinguishes between different forms of intersectionality:16
• Structural intersectionality: This highlights the way people are arranged in the social structure. This form is studied based on the social divisions of race, gender and class. • Political intersectionality: According to Crenshaw, the inconsistent political efforts of two opposing political parties can cause an “intersectional disempowerment” of women.17
Jackson argues that the three arenas of intersectionality are:18
• The structural dimension where social relations are institutionalized in law and state policies. • Everyday social practice. • The way in which social agents and subjects through their embodied acts, construct, enact and make sense of everyday gendered and sexual interaction.
Building upon Crenshaw and Jackson’s frameworks, this thesis focuses on studying structural intersectionality in Palestinian society to measure the influence of this structural intersectionality model on the structure of legislative and judicial processes.
16 Crenshaw, above n 9, 1242, 1251 and 1282. 17 Ravi K. Thiara and Aisha K. Gill, “Understanding Violence against South Asian Women” in Ravi K. Thiara and Aisha Gill (eds), Violence Against Women in South Asian Communities: Issues for Policy and Practice (London: Jessica Kingsley Publishers, 2010) 39. 18 Stevi Jackson, “Gender, Sexuality and Heterosexuality: The Complexity and Limits of Heterosexuality” (2006) 7(1) Feminist Theory 105, 108. 111
2.3 Definitions of the Main Social Categories/Divisions of Intersectionality
This section discusses the meanings of the social divisions that are subject to intersectionality with each other, causing multiple forms of oppression. These divisions are gender, class, race “ethnicity” and sexuality.19 Anthias argues that these social divisions must be identified and defined prior to conducting the process of analysis.20
2.3.1 Gender
The American Psychological Association defines sex as: A person’s biological status and is typically categorized as male, female, or intersex (i.e a combination of features that usually distinguish male from female). There are a number of indicators of biological sex, including sex chromosomes, gonads, internal reproductive organs and external genitalia.21
The American Psychological Association defines gender as: The attitudes, feelings, and behaviours that a given culture associates with a person’s biological sex. Behaviour that is compatible with cultural expectations is referred to as gender-normative; behaviours that are viewed as incompatible with these expectations constitute gender non-conformity.22
According to Jackson gender, is “the division between men and women, male and female. This division is cultural and social”.23 Thus, gender can be viewed through the lens of sex and biological reproduction.24 Rubenberg defines gender as:
A culturally constructed phenomenon, a constellation of signifying practices that the sexed body learns to perform during socialization. It is first derived from women’s childbearing capacities and is then in turn codified and reinforced in the sexual division of labour. Women not only produce children, they also reproduce social systems and power relations even those that oppress them. 25
Recently, gender has been used to reflect the relations of power between the two sex groups. Judith Lorber defines gender as a socially constructed concept affects our daily
19 Nira Yuval-Davis and Floya Anthias, “Contextualizing Feminism- Gender, Ethnic and Class Divisions” (1983) (15) Feminist Review 62, 62. 20 Anthias, above n 1, 13. 21 The American Psychological Association, Definitions Related to Sexual Orientation and Gender Diversity (11/6/2016)
In the same vein, Marxist feminists used the concept of “sexual division of labour” to highlight the idea that the social structure is deeply rooted in gender sexual differences, mainly women’s reproductive abilities.27 According to Marxist feminism, patriarchy has been enhanced historically through the sexual division of labour and class.28 Merging the Marxist feminists’ ideas with sociological perceptions facilitates understanding the role of the sex/gender system as a culturally constructed system.29 This common gender structure is codified in legislation, legitimized by traditions, implemented by policy and enhanced through institutional practice. However, gender does not operate by itself. It operates and interacts with other social divisions, such as class, ethnicity, religion and age. This process of interaction can be described as dynamic. That is, each interaction that occurs within a specific timeframe and place has its own outcome.30
2.3.2 Sexuality
Sexuality or sexual orientation is defined by the sex of the sex partner.31 That is, sexuality refers to “a significant aspect of social life and social being, such as desires, practices, relationships and identities”.32 Jackson argues that gender and sexuality are different from each other because sexuality is an aspect of social life that has no clear boundaries. On the other hand, gender is a socially constructed ontology that is clearly defined based on “binary differences”.33 According to Jackson, sexuality is not reducible to a heterosexual/homosexual binary, and it is ordered not only by gender but
26 Valentine M. Moghadam, Modernizing Women: Gender and Social Change in the Middle East (USA: Lynne Rienner Publisher, 2003) 15. Downloaded from
2.3.3 Class
The concept of class was connected to a person or group’s social status and level of wealth until the eighteenth century. The separation of the concepts of class and social status first developed in the nineteenth century when economists began to talk about the “poor class” or the proletariat and the “rich class” or the capitalists.39 It then became impossible to discuss the concept of class without connecting it with capitalism and the proletariat.40 Accordingly, class is understood from the Marxist perspective as the ownership or the control of the means of production. This class division affects access to political power.41
Anthias has two different views on defining class as a crucial social division of intersectionality. Anthias states that “we do not accept the depiction of class in concrete analysis as reducible to its own dynamic as found within the sphere of economy. Indeed
34 Ibid, 109. 35 Ibid, 107. 36 Ibid, 110. 37 Ibid. 38 Ibid, 111. 39 Jamil Hilal, Al-Tabqa Al-Wasta Al-Falastenya: Bahath Fi Fawda Al-Haywa W Al-Marje’ya W Al- Thaqafa (Beirut: Mo’sasat Al-Dirsat Al-Falastinya, 2006) 11. [Trans: The Palestinian Middle Class: A Research Concerning the Chaos of Identity, Reference and Culture (Beirut: The Palestinian Studies Institute, 2006) 11]. 40 Ibid. 41 Moghadam, above n 26, 16. 114 much recent analysis has treated classes as concrete historical groupings whose actual practices are not reducible to mode of production effects”.42 Anthias also believes that class can be located in the social construction of the ontological space relating to the production and reproduction of economic life.43 Based on these two views, the analysis of class as a component of intersection should take into account the historical context that shaped class formation in Palestine, as well as the role played by the economic production process.
2.3.4 Race: Ethnicity
As discussed in Chapter Three, traditional feminist theory has been criticized for being designed by and for white, middle-class women, and ignores the role of race in producing oppression. Crenshaw states that:
When feminist theory attempts to describe women’s experiences through analysing patriarchy, sexuality, or separate spheres ideology, it often overlooks the role of race. Feminists thus ignore how their own race functions to mitigate some aspects of sexism and, moreover, how it often privileges them over and contributes to the domination of other women. Consequently, feminist theory remains white, and its potential to broaden and deepen its analysis by addressing non-privileged women remains unrealized.44
Therefore, race, in many cases, is a key component operating with other social divisions to produce the complicated phenomenon of the oppression of women. Unlike gender and class, it is difficult to identify the meaning of ethnicity. That is, race is not the only signifier of the ethnic identity of a group.45 This ethnic identity can be also identified by other factors, such as the material, political, and ideological placement of the group.46 The core idea of race revolves around the “myth of common origin”. This common origin can be identified by the tribal, national, linguistic or biological common grounds of an ethnicity’s member. The membership of the collective group is a natural right to those who were born into it. However, in some cases there can be other ways to join the group such as in the case of religious conversion.47 The importance of ethnicity as a social division stems from the fact that it can be a tool of exclusion/inclusion and
42 Davis and Anthias, above n 19, 64. 43 Anthias, above n 1, 7. 44 Thiara and Gill, above n 17, 36. 45 Davis and Anthias, above n 19, 66. 46 Ibid. 47 Ibid. 115 the relations of power of dominance/subordination.48 Ethnic and national groups are different since they have different goals and achievements of the collectivity. For instance, nationalism is political in nature because of its aims to acquire a political representation or territory.49
Gender and ethnicity share a common attribute. This common ground between gender and ethnicity is the notion of “natural relation”. That is, gender division constitutes what is perceived to be a natural division combining sexual differences and biological reproduction, and ethnic division constitutes natural boundaries for collectivities. In some cases, ethnicity and gender intersect to normalize unequal class divisions. For instance, in Western societies it appears to be natural that white men get higher paying jobs than women, and that white people can get better jobs than those who are black.50
3. The Application of the Intersectionality Approach to Palestine
This section applies the intersectionality approach to the Palestinian case. It identifies the relevant social ontologies or categories/divisions and defines these social categories within the Palestinian context. Categories are “intercategorical”. That is, they share connections with each other.51 Therefore, this section highlights the overlapping relations between the social divisions. It also highlights insights into the intersection between the social divisions which produce the complex phenomenon of honour-based violence within the Palestinian context.
3.1 Identifying the Social Ontologies (Categories/ Divisions) in Palestine
Applying the intersectionality approach in Palestine requires identifying the social ontologies (categories/divisions) that are to be subjected to intersectionality analysis. These are class, gender and sexuality. The importance of ethnicity as a social division of intersectionality in the Palestinian context stems from the agenda of the Israeli nationalism project. That is, Israeli settler colonialism is based on regarding the
48 Ibid, 67. In this regard, ethnicity and racism overlap as exclusionary mechanisms. That is, group members that have a different ethnicity because they belong to different cultural, biological or historical origins can be subject to racism. These groups can be Jewish, black, migrants, or any other minority groups. For more information see Ibid. 49 Ibid. 50 Ibid. 51 Anthias, above n 1, 8. 116
Zionism’s teachings on ethnic cleansing of Palestinians.52 Chapter Five discusses that targeting honour is a prominent method of this ethnic cleansing. Nasif and Ihmoud state:
The colonial state violence produces and empowers patriarchy, enabling violence against women. Thus, our investigation of violence against Palestinian women and their access to justice is situated within multiple layers of oppression, amidst the complex interplay between patriarchal violence within indigenous Palestinian communities and the Israeli state violence.53
Other social categories that have an impact on the phenomenon of honour crimes are also examined. These are age along with religious and cultural background. Religious and cultural background are discussed as a component of the intersectionality approach to dismiss the argument that “culture has less saliency in the production of inequality than economic factors”.54 In other words, to apply the intersectionality approach in Palestine in order to understand the multiple dimensions of oppression and explain the roots of honour violence in the legal process, it is important to highlight cultural and religious backgrounds. More importantly, the intersection of social divisions must be studied within a specific period of time. Accordingly, the intersection of the social divisions is analysed within the context of the political agendas of the various nationalism projects.
3.2 Defining the Meaning of the Social Categories in the Palestinian Context
This part of the section provides an outline of the Palestinian story by defining the meaning of the social categories/ divisions in the Palestinian context. These social categories are:
3.2.1 Gender Relations
Gender relations in the Middle East, including Palestine, are based on a code of ethics that must be followed by both males and females. The main teachings of this code of ethics were clarified in Chapter Two while defining the concept of honour crimes. That is, the gender structure in honour-based societies requires women to maintain a high level of sexual purity, because women’s honour is viewed as an extension of the honour
52 Suhad Daher-Nasif and Sarah Ihmoud et al, “Violence against Palestinian Women: An Indigenous FeministApproach”
The association of family honour with female virtue in the social code of ethics stems from the idea that the relationship between society and the individual is crucial in Palestinian society to maintain social stability.56 A family’s honour is evaluated based on the honour of its individuals, and the honour of individuals is evaluated based on the honour of their families. This association can be explained by the fact that the concept of individuality is limited in Palestinian society, since Palestinians live as members of their families not as individuals.57 Social relations in this society are highly reliant on kinship relations, and through kinship relations, individuals inherit their religious, class, and social affiliation status.58 Thus, the individual’s identity is apparent through “relationality” and “connectivity”. Relationality can be defined as a “process by which socially oriented selves are produced under different regimes of political economy”.59 “Connectivity” can be defined as a “relationship in which a person’s personal boundaries are relatively fluid so that the individual understands her/him “self” to be constituted by significant others”.60 Relationality and connectivity are the pillars of the patriarchal system that is based on control, domination, and hierarchies. As previously mentioned, honour and shame are the main tools of control in the patriarchal familial system, where showing loyalty is the main duty of family members.61
The outcome of this gender structure, and the association of female virtue with family honour, is more restrictions on women’s behaviour and choices. In Palestinian West Bank villages and camps, shame and social vigilance define the boundaries of social life.62 Symbolic power, that is located within language, religion and education, facilitates the understanding of relationality. However, the most important outcome of this normative gender structure is the sexual division of labour where there is an
55 Moghadam, above n 5, 141. 56 Rubenberg, above n 25, 10. 57 Ibid, 33. 58 Ibid, 35. 59 Ibid, 33. 60 Ibid. 61 Ibid. 62 Ibid. 118 expectation that women should stay home for the purposes of child bearing and rearing, while men play the role of breadwinners.63
It is evident that men are the dominant gender in the patriarchal gender structure which is based on the maintenance of the traditional social structure and results in the oppression of women. However, it was mentioned in Chapter Two that women can also play a key role in oppressing other women. This point is extensively discussed when studying the category of age.
3.2.2 Sexuality
It was previously noted that sexuality as a social division is not a socially constructed phenomenon by itself. It is the outcome of the intersection of heterosexuality and gender rules that are identified in the social code of ethics. This intersection of heterosexuality and gender guarantees the sustainability of gender structure and the code of ethics. In other words, heterosexuality and gender intersect with each other to produce the ordinary form of the family which serves as the guardian of gender construction.
Normalizing heterosexuality as the natural form of human sexual orientation is the main pillar of the ordinary family institution. Therefore, families are always described as “essential” and “natural”.64 The main purpose of the heterosexual family is to serve as the first nursery for introduction of children to social norms and values. The second purpose is to provide a stable emotional environment for (male) workers to rest from the pressure that they face in the professional world.65 Furthermore, heterosexual marriage is the only means of social reproduction. These tasks are performed by wives and mothers. The heterosexual marriage enhances the sexual division of labour where females serve as mothers and wives who must raise “committed Muslims” and transmit cultural values, and men serve as breadwinners.66 The roles which are performed by women require them to maintain an honourable standard of behaviour, as defined in the social code of ethics, to be able to raise the generations of the future and transmit prevailing social values to them. These are the main values of Arab families including
63 Ibid, 31. 64 Moghadam, above n 5, 137. 65 Ibid. 66 Ibid, 138. 119
Palestinian families. Seyid Qutb, a prominent Egyptian Islamist scholar who represents a traditional conservative view, states that:
Family is the nursery of the future, breeding precious human products under the guardianship of women. A man and a woman voluntarily enter into a relationship of marriage as two equal partners, each discharging functions assigned by nature and biology. A woman fulfils her functions by being a wife and mother, while a man is to be the undisputed authority, the breadwinner and the active member in public life.67
In the same context, Fereshteh Hashemi, an Iranian female writer, believes that God exempts women from the responsibility of securing a living for their families, so they can play their divinely appointed role of childbearing.68 This concept of the “women’s haven,” enhances the patriarchal social structure by creating two distinct spheres, where there is a line that separates the public and private domains. As explained in Chapter Three, family, as the private sphere, is immune to state regulations.69
3.2.3 Class
Julie Peteet argues that “women’s individual experiences and their meaning are comprehensible only within a class framework. How women discern the world around them is mediated by their class affiliation and the power, or lack thereof that accrues from it”.70 The status of Palestinian women is largely determined by their class. That is, class is not just an “economic issue”, class is an important factor that identifies cultural practices and ideologies.71
Class boundaries are defined by the level of access to power, income and wealth.72 The traditional class division in Palestine consisted of feudalists and a large mass of peasants.73 However the contemporary class division in the Palestinian society is as follows:74
67 Ibid, 139. 68 Ibid. 69 Ibid, 140. In this regard, it is worth mentioning that family is only penetrated by family laws. 70 Rubenberg, above n 25, 55. 71 Ibid. 72 Ibid. 73 Ibid, 56. 74 Ibid, 57. Also see Hilal, above n 39, 77. 120
1. The upper class that consists of a few very wealthy families who made their money working in the Gulf countries, and the “big bourgeois” of landholding families. This class constitutes 20% of the Palestinian population.
2. The intermediate class of “petite bourgeoisie” which consists of middle level or higher bureaucrats, a few intermediate landholders, members of the white-collar professions, successful self- employed retailers and shopkeepers. This class constitutes 30% of the Palestinian population.
3. The third class is the overwhelming majority of both village and camp population in the West Bank. This class consists of peasants, sharecroppers, workers, lower level bureaucrats, soldiers, policemen and the unemployed.75 This class constitutes 50% of the Palestinian population.
As well as the economic factors that define class division, there are social and historical factors that influence class formation within the Palestinian context. For instance, camp residents (refugees) are considered the lowest class in the Palestinian class structure because they are always viewed as dirty, backward, poor and ignorant by non-refugees.76
The economic and historical factors that led to class formation in Palestine affected the status of Palestinian women. For instance, in Palestine during the time of Ottoman rule, sexual inequality was more prevalent among the upper class where women were largely segregated from men. These women were largely confined to the domestic sphere and they took no part in public and political affairs. However, the case was different among the poorer peasant women who came from small extended families, or even from nuclear families without wider kinship ties because they worked on the land side by side with their husbands and fathers. They were more liberated than women who belonged to the upper class. For instance, their marriages were less binding. In a study of 107 marriage contracts in the eighteenth century, 23 cases indicated that women were
75 Nahla Abdo, “Al-Mar’a Wal Faqar: Moraja’a Naqdya La Adabyat” (Taqreer Moqdam Ela Monzamat Al-Omam Al-Motahda Li Tarbya w Thaqafa Wal Aloom, 2006) 5. [Trans: Nahla Abdo, “Women and Poverty in the Occupied Palestinian Territories: A Critical Literature Review” (A Report Submitted to the United Nations Educational, Scientific and Cultural Organization (UNESCO), 2006) 5]. This reports the statistics of the World Bank about the level of poverty in Palestine and indicates that half of Palestinians lived below the poverty line in 2004. 76 Rubenberg, above n 25, 58. 121 divorced and remarried once or twice. Most of these cases occurred among the poorer class.77
The social status of Palestinian peasant women deteriorated as a result of severe economic decline after the catastrophe of 1948, when the new Zionist state expelled Palestinians from their lands and turned them into landless and paid workers depending on unstable and insecure incomes. This economic decline was accompanied by the enhancement of the prevailing gender and sexuality rules which led to an increase in women’s oppression. This was because the chances for rural uneducated women to be employed were very low, especially after losing the land. Women also became responsible for reproducing future male workers who would contribute to family subsistence.78 In other words, women’s work on the land helped to decrease the influence of sexuality and gender rules, while this loss of land led to an increase in their level of oppression.
The lack of participation of lower-class women in professional life has contributed to making them the most oppressed category of women in Palestine. Statistics show that poverty and unemployment are heavily concentrated in camps and villages.79 Poverty can determine the extent of girls’ education, their age at marriage and access to the work force. This confirms the fact that women are isolated by their class identification which views them as confined to the domestic sphere.80
Palestinian patriarchy is more evident in villages and refugee camps,81 and less evident in metropolitan areas. Women are fully aware of the differences in their status in urban and rural areas. Upper-middle class, urban women of the Middle East can exercise freedom with a greater number of choices and thus become more emancipated than women from the lower-middle and poor classes.82 A Palestinian woman states:
I think women who live in the cities are better off than the ones who live in villages. They are very different. In the villages, women do not even have basic rights. They do not have a life. For example, in the villages, men never take into consideration women’s opinions….. They exist just to produce children.
77 Nahla Abdo-Zubi, Women and Social Change in the Middle East: The Palestinian Case (Toronto: Canadian Scholar’s Press, 1987) 12. 78 Moghadam, above n 5, 144. 79 Rubenberg, above n 25, 16. 80 Ibid. 81 Ibid, 13. 82 Moghadam, above n 26, 17. The majority of the Palestinian middle class lives in cities and urban centres. See Hilal, above n 39, 79. 122
That’s all. There is no discussion about or understanding of women on the part of men. I’m certain the situation in the cities is better.83
3.2.4 Age
The dominant power relation (patriarchy) is not just domination practiced by one group over another. Rather, power is exerted through a “chain of individuals” who exercise authority. Rubenberg argues:
Patriarchy produces discourses- it compels individuals to perform- to participate in role designation and accept and adhere to given norms and values. The relations of power that dominate and oppress cannot be established, transmitted and reproduced without the production and circulation of discourses of the “truth” or “knowledge”. The role of such discourses of truth is to legitimize power inequalities.84
Accordingly, “truth” and “knowledge” can transform women into major players in the system of patriarchy because some of them accept their socially designated roles and internalize the prevailing social norms. Therefore, many of them believe that virginity and chastity are the most important, if not the only, aspect of their moral worth.85
Women, especially older women, can have an active as well as a passive role in the patriarchal system. This is because patriarchy may be understood as “the privileging of males and seniors”.86 That is, the extent of power and authority is identified based on gender and age in the patriarchal system: older men have more power than younger ones, and men have more authority and power than women. Older women also have more power than younger ones in the hierarchy of power because it is assumed that the post-menopausal matriarch has internalized the patriarchal ideology.87 Consequently women gain more authority in the institutionalized hierarchy of power as they become postmenopausal and after the death of their mothers-in-law. This means that young women are the main group subject to the violence that results from the patriarchal system.88 Matriarchy is the “other side of the coin of classic patriarchy”. However,
83 Rubenberg, above n 25, 1. 84 Ibid, 11 85 Ibid. 86 Ibid, 12. 87 Ibid, 13. Rubenberg argues that “the system of patriarchy can only function with the cooperation of women. This cooperation is secured by a variety of means, such as gender indoctrination, educational deprivation, the denial to women of knowledge of their history, the dividing of women one from the other by defining respectability and deviance according to women’s sexual activities by restraints and outright coercion by discrimination in access to economic resources and political power and by awarding class privileges to conforming women”. Ibid. 13. 88 Ibid, 33. 123 according to the hierarchy of power in the patriarchal system, matriarchal women are still required to submit to the authority of senior males.89
3.2.5 The Religious and Cultural Background90
It was discussed in Chapter Two that the relationship between Islamic law and social norms was used by some Islamist scholars to rationalize honour violence and portray it as an authentic part of Islamic teaching. This process of Islamizing honour is a crucial factor for the legitimization of honour-based violence and gave it an Islamic nature.
The relationship between Islamic law and social norms becomes more important in light of the fact that not only did some scholars rationalize honour as an Islamic phenomenon, but others also went further and argued that honour killing is equivalent to the death penalty for the crime of fornication.91 This is despite the fact that traditional Islamic criminal law provides stringent conditions for applying the death penalty in the case of adultery, such as the supervision of a judge, and a trial in the court with attendance of four reliable witnesses. These conditions were discussed in Chapter Two. Other scholars are fully aware of the difference between the rules of classical Islamic criminal law and the honour concept. However, they still justify honour violence and consider it as pro-shari’a rather than part of shari’a. This assumption is based on the fact that honour violence and traditional Islamic law share a common social purpose:
89 Ibid, 13. 90 Islamizing honour became more crucial after the establishment of the Islamic resistance movement Hamas in 1987. The movement was established as a result of the Palestinians’ frustration with the failure of the secular nationalism project to liberate Palestine and establish the Palestinian state. Moreover, the popularity of Hamas increased after the paralysis of the peace process. This new project had its own definition of the Palestinian nationalism. The Islamic movement’s vision as an anti-Zionist and anti- imperialist movement was based on the idea of protecting the cultural identity and the authenticity of Palestinian society as a means of struggle against the Israeli enemy. According to this vision, religion is the most vital component of this authenticity. This new Islamist definition of Palestinian nationalism enhanced the idea that women are the “symbol” of the cultural values and traditions since they play an important role in raising the new generations. This was evident in Articles (17) and (18) of Hamas Covenant of 1988. Consequently, Islamist vigilance was greatly escalated after the 1987 Intifada. The reaction to this vigilance was variable. Some women accepted their roles as defined by the Islamic movement, while other women were struggling to gain more rights. Zahira Kamal, a leading figure in the Palestinian women’s movement, states that “the Palestinian women are prisoners of a concept of women and the intifada”. Similar to the secular nationalism project, the Islamic movement supported women’s rights as long as they served its interests. Therefore, it borrowed some concepts from the international human rights discourse to increase its popularity. Additionally, it concentrated its activities among the women of the lower classes to recruit more members. See Hilal, above n 39, 127; Moghadam, above n 26, 24-26; Islah Jad, “Feminism between Secularism and Islamism: The Case of Palestine, West Bank and Gaza” (2010) Conflicts Forum Monograph 1, 4 and 6. See also Israeli Missions Around the World, Hamas Covenant (20/4/2019)
The Islamized honour-based violence that is applied within the private sphere was enhanced by the dual Palestinian legal system. This system has a great influence on associating religion with the private sphere of the family, by defining family as the proper sphere of Islamic law. Consequently, the religious courts’ jurisdiction includes adjudicating issues of personal status such as divorce, marriage, inheritance, and domestic disputes, and the formal judiciary that is based on secular law covers all criminal, commercial and civil cases. The dual legal system reflects the structure of the secular state that has been established based on curtailing the competence of religious authorities and banning their activities in political life.93 Thus, legal dualism has enhanced the public and private dichotomies through ensuring that equality and justice are essential values in the political sphere. On the other hand, the private family sphere is the sphere of hierarchies and parental authority that should not be governed by any legal system but religious law. A historian of personal status law observes:
The relegation of shari’a law to family matters reflected a new understanding of the family as a social unit and its relationship to public politics and citizenship. Confining shari’a to domestic matters politicized the family both as a sphere of intimate, affective relations and as a repository of group identity of which religious affiliation was a defining legal moral characteristic. Languages of privacy which entered the legal discourse around personal status matters concurrently with the limiting of the shari’a jurisdiction served to create the family both a private space and one which was central to political order.94
In summary, the dual legal system originating with secularization and its consequence of marginalizing the application of Islamic law and confining it to the family, transformed families into “natural nurseries” of religion where Islamic law could find its place within the state’s secular legal system. Confining Islamic law to family matters in addition to Islamizing honour-based violence help to legitimize this form of violence in
92 Ibid. Some Palestinian religious institutions and figures are adopting a position against honour crimes. This position was embodied in the statement of ruling bayan al- hukm regarding the crimes of incest and honour killing that was issued by the former Chief of Islamic Justice in Palestine Shaykh. Taysir Al Tamimi on the 23 March of 2005. Lynn Welchman, “Honour and Violence against Women in a Modern Shar’i Discourse” (2007) 5(2) Hawwa 139, 156-160. 93 Ellen McLarney, “The Private is Political: Women and Family in Intellectual Islam” (2010) 11(2) Feminist Theory 129, 131 and 145. 94 Ibid, p. 132. 125 some families. The impact of Islamizing honour violence and confining Islamic law to family matters is very significant for Palestinian society, which is described as religious in the broad sense of the word.95
3.2.6 National Identity and The Nationalism Project: The Timeline of Intersectionality
Different sociologists have attempted to define the term “nation”. The common definition is “those which have their own history, language, territory, economic life and culture”.96 Other definitions emphasize the fact that the common ground that is considered a cornerstone in the foundation of the nation is the belief of its members that they have a “superior quality” compared to other nations.97 It can also be defined as “a group of people who will themselves to persist as communities”.98 The approach of associating the state with the nation stems from the fact that Western nationalism was the underlying motive in the establishment of nation states.99
Nationalism is the strongest ideology of the modern era.100 Therefore, it is essential to study the intersection of social divisions within the historical developments and agendas of the successive nationalism projects. Studying the nationalism projects as a timeline of intersecting social divisions in Palestine stems from the fact that it has witnessed a succession of co-existing nationalism projects which directly affect its legal process. The impacts of the nationalism projects on women’s rights indicate that nationalists were influenced by the idea of emancipating women. However, they only accepted the idea of emancipating women as long as it served their political agenda.101 The negative impacts of the successive nationalism projects on Palestinian women’s rights can be shown in light of Moghadam’s argument that political conflicts can be a factor in improving women’s conditions and weakening the rules of patriarchy. In other words,
95 Jamil Hilal, “Secularism in the Palestinian Political Culture: A Tentative Discourse” (2002) 3(1) International Social Science Review 103, 103. 96 Nira Yuval-Davis, “Nationalist Projects and Gender Relations” (2003) 40(1) Narodna Umjetnost 9, 11. 97 Ibid. 98 Ernest Gellner, Nations and Nationalism (Carlton: Blackwell Publishing, 2006) 52. 99 Floya Anthias and Nira Yuval-Davis, “Introduction” in Nira Yuval-Davis and Floya Anthias (eds), Women-Nation-State (London: Macmillan Press, 1989) 3. 100 George L. Mosse, Nationalism and Sexuality: Middle-Class Morality and Sexual Norms in Modern Europe (Madison: The University of Wisconsin Press, 1985) 1. 101 Jad, above n 90, 5. 126 political conflicts can raise women’s level of education and employment chances.102 In this regard, the Palestinian catastrophe in 1948, which led Palestinians to flee their cities and villages, was supposed to change the structure of Palestinian rural patriarchal society.103 The prolonged Palestinian uprising was also supposed to positively affect the lives of Palestinian women and raise their chances of participating in the political life of the nation. However, the reality was different. The nationalism projects’ role concerning women’s emancipation is a major reason for this current state of disappointment.104 The impacts of the nationalism projects on the Palestinian legal process can be tracked through analysing the Palestinian, Jordanian and Israeli nationalism projects.
The main nationalism project is the Palestinian Liberation Organization project, a conflict nationalism project. Feminism was widely known in Palestinian society during the military struggle against the Israeli occupation that mainly occurred between 1970 and 1980.105 As discussed in Chapters One and Two, feminists were working hand-in- hand with nationalists in the struggle against the occupation. The women’s movement was also internalized within the Palestinian Liberation Movement. Therefore, the social struggle was a part of the political struggle against the oppression of occupation. As a result, Palestinian women enjoyed a greater level of freedom in that era.106 However, the process of liberating Palestinian land from prolonged occupation has also made a direct contribution to the inferior status of Palestinian women. Palestinian nationalism has two conflicting visions of women’s social status. 107 The ideology of Palestinian nationalism requires a “model woman”. This “model woman” is supposed to bear all traits of the authentic Palestinian woman. In other words, Palestinian women are viewed as the “special depositary of pure and uncontaminated nationalist values”.108 On the other hand, nationalists viewed the contemporary woman as the “sister of men”.109 This confusion was the reason why Fatah could not totally emancipate women. In this
102 Moghadam, above n 26, 23-24. For instance, a professor of education at the Lebanese University argues that the Lebanese parents showed more leniency toward educating their daughters during and after the Lebanese civil war. Since higher education was considered as a “financial asset”. During the Iraqi- Iranian war, the Iranian women’s employment chances drastically increased compared to women’s chances in 1976. This increase came in spite of the strict Islamic Ideology. Ibid. 103 Ibid, 24. 104 Ibid. 105 Rubenberg, above n 25, 65. 106 Ibid. 107 Jad, above n 90, 5. See also Deniz Kandiyoti, “Bargaining with Patriarchy” (1988) 2(3) Gender and Society 274, 282. 108 Jad, Ibid. 109 Ibid. 127 regard, the head of the Palestinian Liberation Organization, Yasser Arafat, refused the proposals of the General Union of Palestinian Women to advance and improve the rights of women in marriage, divorce and inheritance.110
The Palestinian women’s movement split from the Palestinian Liberation Movement when the Palestinian Authority took over the governance of the West Bank. The Palestinian Authority represents a post-conflict nationalism state project. The term “post-conflict” refers to:
A period when predominately male combatants have ceased to engage in official war. Because conflict is still perceived through male paradigms by both international and national community leaders by and large men- the formal period of fighting conflicts is what the international development community focuses on. Once such fighting has stopped, a conflict is perceived to have transitioned beyond conflict. Although the new phase is not without violence, there is no more official conflict. Apart from isolated incidents, the threat of violence is apparently over.111
The state project did not supersede the Palestinian Liberation Organization project. However, the Palestinian Authority ignored the long history of women’s participation in the struggle against occupation.112 The vision of the Palestinian Authority, represented by Yasser Arafat, was based on establishing a state which guarantees the loyalty of the tribes and inter-tribal divisions.113 This policy entrenched the culture of honour violence for two reasons. The first is that the vision of the new state was based on leaving cultural tribal values, including the outdated ones, untouched. The second is that the concept of honour was based on the idea of loyalty which the Palestinian nationalism project considered essential for building the new Palestinian state.
110 Ibid. The confused vision concerning women’s emancipation comes as a result of the ambiguity of Arab and Palestinian secularism. Despite the fact that secular nationalism claims “ownership” of the theory of democracy, nationalism has ties with the religious heritage of nation. In this regard, there are three ways to explain this connection. The first approach argues that religion is an essential component of the nationalism project. In other words, religion and nationalism complete each other. The second approach argues that there is a separation between the secular nationalism project and religion. Thus, the Palestinian nationalists did not use religious principles to seek political legitimacy. The third approach argues that it is true that the secular Palestinian Liberation Organization did not use religion in politics. However, its definition of gender relations was based on the teachings of Islam. Ibid, 5 and 13. Musa Budeiri, “Palestinian Identity: The Construction of Modern National Consciousness” (1998) 35 The Journal of Palestinian Studies 1, 7-12. Hilal, above n 95, 103. 111 Lori Handrahan, “Conflict, Gender, Ethnicity and Post-Conflict Reconstruction” (2004) 35(4) Security Dialogue 429, 430. 112 Nawar Al Hassan Golley, “Is Feminism Relevant to Arab World?” (2004) 25(3) Third World Quarterly 521, 521. 113 Rubenberg, above n 25, 62. 128
The West Bank, which was part of the Jordanian Hashemite Kingdom between 1948 and 1967, was also part of the Jordanian nationalism project. In that era, the Penal Code No. (16) of 1960 was issued.114 The Jordanian nationalism project is a post-colonial nationalism project. Post-colonialism is a controversial concept which is defined in several different ways. The first definition simply refers to the countries which gained their independence after the collapse of the colonial powers in the twentieth century. The second definition refers to the political state in these countries after the acquisition of independence from the colonial powers. This definition asserts that these countries inherited the institutional structure of the colonial powers. This colonial institutional design was aimed at protecting the regime from its people instead of protecting it from external powers. As a result of this weak institutional structure, familial and tribal structures were necessary to fulfil the needs of the regime’s members and fill the gaps that resulted from the absence of formal state institutions. In these states, the use of violence to protect social order is not an uncommon phenomenon. The third definition is viewed through the lens of modernity. Helfont argues that the guiding principles of these newly established states are based on Western concepts such as liberalism, the free market and secularism.115
This discussion of these three definitions of post-colonialism shows that the struggle for identity is a crucial factor in post-colonial states since the ideology of these states is based on preserving the artificial boundaries between the East and the West.116 In these regimes it is essential to maintain the presence of families and tribes as the main supporters of the official regime, while applying modern Western principles in order to assimilate into the international community. In other words, striking a balance between tradition and modernity is a very real challenge facing post-colonial nationalism projects.
Gender relations in general, and honour violence in particular, are important tools for maintaining this balance. It was noted in Chapter One, that Abu Odeh argues that the core goal of a post-colonial nationalism project is striking a balance between modernity
114 The West Bank was officially annexed to Trans-Jordan in April 1950. For more details see Betty S. Anderson, Nationalist Voices in Jordan: The Street and The State (Austin: The University of Texas Press, 2005) 114. 115 Samuel Helfont, “Post-Colonial State and the Struggle for Identity in the Middle East since World War Two” 23October 2015 Butcher History Institute
The military conflict between Israelis and Palestinians raises the issue of race/ethnicity and adds another dimension to the oppression of Palestinian women.120 The Israeli nationalism project has played a key role in entrenching violence against Palestinian women, mainly honour-based violence.121 Sexual violence and women’s bodies are used as tools to combat enemies. Therefore, Palestinian women’s physical and sexual safety is violated since they are the ones who give birth to the future generations.122 Kevorkian highlights the fact that settler colonialism is not an isolated incidence of oppression, since it plays an important role in changing the structure and the infrastructure of Palestinian society. Settler colonialism often involves an extensive process of collective ethnic cleansing and genocide of the indigenous people of the area
117 Lama Abu Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies” (2010) 2 Comparative Law Review 2, 29-30. 118 Beth Baron, “Women, Honour and the State: Evidence from Egypt” (2006) 42 (1) Middle Eastern Studies 1, 2. 119 Ibid. 120 Handrahan, above n 111, 440-442. 121 Nadera Shalhoub-Kevorkian and Suhad Daher Nashef et al, “Al-Onof Al- Jsadi, Ajsad Al-Nisa’, W Al- Est’mar Al-Istatni Al-Israeli” (2014) (3) Al-Markaz Al-Arabi La Dirsat Al-Ijtima’ya Al-Tatbeqya, 2, 3 [Trans: Nadera Shalhoub-Kevorkian and Suhad Daher Nashef et al, “Physical Violence, Women’s Bodies and the Israeli Settler Colonialism” (2014) (3) The Arab Centre for the Applied Social Studies 2, 3]. 122 Ibid. In her Article, Kevorkian highlights a personal witness of a Palestinian woman who was subject to sexual violence after she was arrested by the Israeli military forces. In the witness the woman states that “the Israelis arrested me and kept me in the investigation room alone. A tall man with a strong body entered the room. I was alone, scared and shaking. The guy started examining my body and asked me to get closer. I was scared that he is going to rape me”. Ibid, 2. 130 being colonized. Thus, settler colonialism aims to eradicate indigenous populations and replace them with new settlers. This process is referred to as “demolishing for the purpose of replacing”.123
Since the establishment of the state of Israel in 1948, the state further enhanced the philosophy of ethnic colonialism. That is, the Palestinians are the “others” who constitute a real danger that could jeopardize the future of the Jewish “white” state. According to Kevorkian, some scholars highlight the idea that this approach of ethnic cleansing of Arab is obvious in the ideology of the first Orientalist Zionist philosophers who believed that Jews are responsible for introducing European civilization to a backward area.124 To achieve this end, Zionist leadership portrayed the historical Palestine as “a land without a people for a people without a land” and started the process of ethnic cleansing of 750,000 Palestinians in the historical territory of Palestine during the catastrophe of 1948.125 Sexual violence against Palestinian women was used as a tool to commit genocide against Palestinian women.126 In this regard, Kevorkian emphasizes the connection between sexual violence and genocide that is committed against Palestinians since they represent the producers and the boundary makers of the rival ethnic group. This connection between sexual violence and genocide stems from settler colonialism’s belief in the legitimacy of controlling and violating the indigenous people, including their lands and women’s bodies.127 This issue is the subject of an extensive discussion in Chapter Five of this thesis in the context of highlighting the impacts of the Israeli nationalism project on entrenching honour violence in the Palestinian legislative process.
123 Ibid, 3. 124 Ibid. 125 Nahla Abdo and Ronit Lentin, “Writing Dislocation, Writing the Self: Bringing (Back) the Political into Gendered Israeli-Palestinian Dialoguing,” in Nahla Abdo and Ronit Lentin (eds), Women and the Politics of Military Confrontation: Palestinian and Israeli Gendered Narratives of Dislocation (New York: Berghahn Books, 2002) 6. 126 Kevorkian et al, above n 121, 4. 127 Ibid, 4-5. The history is replete of other similar examples where nationalism and gender intersect. The closet example to the Palestinian one is the experience of Indian women during the partition of India in 1947. In this regard, 75.000 Indian/Pakistani women were abducted and raped by men who belonged to a different religious group. Therefore, it was a well-known practice, in that era, for women to drown themselves to avoid the experience of rape. In other instances, fathers and husbands killed their daughters and wives to protect them from rape and protect their family honour from contamination. Women victims were called the martyrs of protecting the national identity. Urvashi Butalia, “From the Other Side of Silence: Voices from the Partition of India” (2007) 19 University of Hawai’i Press 41, 41-49. 131
3.3 The Overlapping Relationship Between the Social Divisions
As a preliminary step to highlighting the concrete social relations that result from the intersection of the related social divisions, this part of the section highlights the “intercategorical” relations between the social divisions.
3.3.1 The Overlapping Relationship between Class, Gender and Sexuality
Chapter Two explained that the traditional honour code consists of the social norms that establish the values and behaviours expected of both gender groups. It requires men to show autonomy, assertiveness, hospitality, generosity and financial maintenance of the family.128 They are also supposed to be brave and able to resist domination “through equal or greater strength” and control their dependants. This justifies men’s sovereignty over their women.129 According to Palestinian traditions, land ownership is an important attribute of honourable men. However, Palestinians’ expulsion from their lands and the extensive confiscation of land led to an undermining of the moral worth of owning land.130 Additionally, the change in political and economic circumstances which led to high unemployment rates and poverty impeded men’s ability to fulfil their roles as identified by the traditional male honour code. The deteriorated economic situation and the loss of land have made it difficult for poor men to prove their honour through demonstrating their autonomy, independence, hospitality, adequate financial care of their families and generosity, as stipulated by the traditional honour code. The situation is complicated by the fact that men cannot practise assertiveness because of the occupation. So, women’s honour has been rendered as a vessel by which men can assert their moral value.131 Thus, women’s sexual purity becomes more important among poor families and women’s work outside their homes does not have direct impacts on developing their social status.132
128 Rubenberg, above n 25, 41. 129 Ibid. 130 Ibid. 131 Ibid, 42. 132 Hilal, above n 39, 188. Amalia Sa’ar and Taghreed Yahia-Younis, “Masculinity in Crisis: The Case of Palestinians in Israel” (2008) 35(3) British Journal of Middle Eastern Studies 305, 319. 132
3.3.2 The Overlapping Relationship Between Class and Religious Background
The Islamic movement has recruited the petty bourgeoisie and the most conservative elements of the professional middle class,133 with the largest number of its proponents belonging to the lower- middle and poor classes. The Islamic movement’s feat of recruiting a large number of members was not difficult because of the fact that most Palestinians are religious.134 People who belong to the lower- middle and poor classes are more inclined to believe that family is the nursery of religion, and that honour-based violence is the contemporary replacement for the Islamic punishment of adultery. These beliefs are enhanced by the Palestinian educational system which is controlled by Islamists and conservative staff.135 The staff members of the public schools that are available to children of the middle and poor classes are influenced by traditions and their social surroundings. The outcome of this reality is an educational system that aims at producing more conservative citizens who believe that honour-based violence is a legitimate practice.136 In this context, Jad believes that the new members of the Islamic movement are different from the previous generation of the Muslim Brotherhood. The members of the new generation come from the poor class whose families were displaced after the catastrophe of 1948, while the previous generation’s founders belonged to a higher-class background.137
3.3.3 The Overlapping Relationship Between Class and Age
Examining the practices of Palestinian families shows the relationship between the divisions of class and age. The statistics of the Palestinian Women’s Centre for Legal Aid and Counselling WCLAC highlight some manifestations of this relationship. For
133 Moghadam, above n 26, 16. 134 Hilal, above n 39, 253. Hilal, above n 95, 103. 135 During the Jordanian rule in the West Bank between 1948 and 1967 the activities of the political parties were banned. However, the Muslim Brotherhood was the only political party that was allowed to have hold political activities in public. Many teachers in the public schools were members of the Islamic brotherhood. On the other hand, the teachers who belonged to the left wing were only recruited in the private schools which are only available to the children of the upper class. In other words, public educational system was deprived of the influence of more progressive staff members. See Hilal, above n 39, 253. 136 Ibid, 252. 137 Jad, above n 90, 9-10. 133 instance, according to WCLAC reports that documented femicide in Palestine in the period between 2011 and 2012, the 18 victims were aged between 17 and 65. Two victims were above 40, the other sixteen victims were below 40.138 The reports of femicide for the period 2007 to 2010 indicated that the ages of the victims were between 22 and 29 years in 2008, between 17 and 40 in 2009, and between 13 and 38 in 2010.139
WCLAC researchers who documented femicide between 2007 and 2010 conducted an empirical study to assess the economic status (class) of victims’ families. This research highlighted the fact that the families of the victims suffered due to a severe state of poverty. They lived in very modest houses that lacked the basic requirements for a normal life style.140 The research also showed that most victims were unemployed, and the ones who worked outside the home were working in very modest positions with very meagre incomes.141 The majority of honour crimes were committed in villages and refugee camps. For instance, there were 10 victims who lived in cities compared to 19 who were living in villages and refugee camps.142
In terms of the cultural background of the victims and their killers, the research highlighted the fact that all victims were uneducated and some of them were illiterate.143 The killers’ level of education was very low and most of the time did not exceed an elementary school level. The perpetrators of these crimes could be classified into two categories: The first were religious perpetrators who misinterpreted religious rules and understood honour killing as a punishment for adultery. The other category were those from a low socio-economic background. They may be drug or alcohol addicts or suspected of having relations with Israeli intelligence organizations.144 This category of perpetrators found practising honour-based violence to be a method for proving their manhood and social value.
138 Lotfya Sihweel, “Nisa’ Mostabaha Arwahan: Qtal El-Nisa’ Fi Falsteen Fi 2011 w 2012” (Taqreer Markaz Al-Mar’a Li Mos’da Al-Qanonya Wal Irshad, 2013) 49. [Trans: Lotfya Sihweel, “Right of Life Denied: Killing of Women in Palestine in 2011 and 2012” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2013) 49]. 139 Hanan Abu Ghosh, “Nisa’ Bela Asma’: Taqreer Hawal Qatal Al-Nisa’ Ala Kalyfiat Al-Sharaf Fil Mojtam’ Al-Falstini men 2007 ela 2010” (Taqeer Markaz Al-Mar’a La Mos’da Al Qanonya Wal Irshad, 2010) 19-22. [Trans: Hanan Abu Ghosh, “Women without Names: A Report on Femicide in the Name of Honour in Palestinian Society from 2007 to 2010” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2010) 19-22]. 140 Ibid, 29. 141 Ibid, 24. 142 Ibid, 25. 143 Ibid, 24. 144 Ibid, 29. 134
3.4 The Intersection of Social Divisions within the Co-Existing Nationalisms Projects
Chapter Two argued that traditionally, women’s honour was a tool to prove loyalty within mobile tribal societies. It further argued that the modern state is complicit in entrenching manifestations of honour-based violence. That is, honour has functioned as a tool to strike a balance between tradition and modernity during the early stage of the state-building process in many Arab countries. In other words, honour violence has two purposes: ancient and modern. These work together in the social realm.
Honour-based violence in the Palestinian case represents a combination of these two purposes. In the Jordanian nationalism project, honour also had two purposes. These were striking a balance between tradition and modernity and protecting the cultural authenticity of society. However, the concept of honour as a sign of loyalty has prevailed. The thesis argues that honour as a sign of loyalty went through stages of evolution within the nationalism projects of the Palestinian Liberation Organization, Palestinian state and Israeli nationalism projects. The continual evolution of honour as a sign of loyalty in the different nationalism projects has impeded the emancipation of Palestinian women. Therefore, it is difficult to compare the experience of Palestinian women with the experience of other women who could benefit from armed conflicts to accelerate their emancipation.
These stages of evolution are studied through the intersectionality approach. The categories of gender, class and sexuality are manifestations of social and family violence. On the other hand, the nationalism project is the origin of state violence against women. The state used family and social violence to unleash its violence and apply its agenda regarding gender matters. This agenda is reflected in the legislative and judicial process as the next two chapters show. In other words, social and family violence were state-oriented, and the intersection of class, gender and sexuality functioned to implement the agendas of the various nationalism projects.
The intersection of social divisions is studied in the following three stages:
• Gender, class and sexuality within a post-colonial nationalism project (the Jordanian post-colonial state nationalism project).
135
• Gender, class, sexuality and ethnicity within conflict nationalism projects (the Palestinian Liberation Organization and the Israeli nationalism projects). • The impacts of the conflict nationalism projects on the post-conflict nationalism project (the Palestinian state nationalism project).
4. Conclusion
This chapter explained that the four main elements of intersectionality analysis are: identifying the arenas of investigations; identifying the social divisions of intersectionality; identifying the concrete social relations resulting from the intersection of the social divisions; and employing this approach to identify the outcome of intersectionality on the legal process.
The main focus of this chapter was to identify the major social divisions of intersectionality and define them from a Palestinian perspective. Building on this foundation, Chapter Five further investigates the concrete social relations and the outcomes of intersectionality in the legislative process. Chapter Six presents the outcomes of intersectionality in the judicial process, based on the concrete social relations discussed in Chapter Five and the empirical data extracted from interviews with judges and the case analysis. The main purpose of studying the concrete social relations and the outcome of intersectionality is to delineate the category of women produced by intersectionality who share the same conditions and oppression.145
145 Anthias, above n 1, 9. 136
Chapter Five
Honour-based Violence in the Palestinian Legislative Process
1. Introduction
Chapter Two noted the prominent argument that, in the process of combating honour violence, legislatures have had a tendency to be more progressive than judges who have been inclined to continue applying traditional concepts of honour. Based on this analysis, it is clear that the disparity between legislation and judicial practice transforms the latter into a stumbling block that impedes the progressive reform process of combating honour-based violence. Article (340) of the Penal Code No. 16 of 1960, that is still operative in the West Bank, was also discussed in order to explain the elements of the crime of passion from which this article borrowed. This discussion was designed to highlight the quantum leap that the legislation appears to have made. However, another important question requires investigation: Is the modernization of one provision (Article 340) a sufficient basis for describing the overall legislative policy regarding honour violence as progressive?
To answer this question, it is necessary to review the legislative philosophy pertaining to related crimes including sexual crimes. The answer to this question is crucial to accurately identifying the pillars of the legislative criminal justice policy on honour- related crimes and gender equality. This policy constitutes the basis of the judicial practices that are subject to detailed discussion in Chapter Six. Studying sexual crimes provides a more solid foundation for evaluating the argument that the legislative rules are more progressive than the judicial practice. It is evident that the aim of the legislation is to strike a balance between tradition and modernity. However, the argument advanced in this chapter, through an analysis of sexual crimes as they are defined in the Codes, is that traditions (including traditional concepts of honour as a sign of loyalty) remain predominant. That is, contemporary judicial practice is more closely derived from the actual legal texts than is suggested by the familiar narrative of legislative modernization. In this chapter, the Penal Code No. (16) of 1960 and the Palestinian draft of the Penal Code of 2011 are analysed to highlight their major
137 features and the implications these have for how we should characterize the legislative treatment of gendered sexual and violence crimes.
In addition to highlighting the problems with the conventional legislative modernization narrative, it is important to analyse the causes that have given rise to the problem by understanding its dimensions. That is, it is essential to understand the surrounding factors that have affected the formulation of the legal provisions contained in the Codes. This understanding is an essential foundation for future reform efforts aimed at combating honour-based violence and incorporating gender equality principles into the rules and practices of the Palestinian criminal justice system. In other words, future legislative reform that attempts to change the status quo must be fully cognizant of the factors that have shaped current legislative arrangements. There is an important connection here to an argument advanced in Chapter Four: that understanding the nature of political oppression is crucial to gaining a better understanding of violence against women. The thesis argues in Chapter Three that the voices of Palestinian women must be analysed in a way that considers the intersection between Israeli violence, social patriarchy and the various layers of oppression. Finally, the thesis also argues in Chapter Two that the concepts of nation and nationhood are directly related to the phenomenon of violence against women.1 Gender relations are of key importance in the formation of the nation. Consequently, the gendered code of ethics which requires women to maintain a high level of modest sexual behaviour is regarded as a vital element in the life of the nation. Honour, which is considered to be the main pillar of the gendered code of ethics, is used as a tool to enforce the nationalism project’s understanding of gender relations and set the moral boundaries of the nation. Kandiyoti argues that:
Nationalist’s movements invite women to participate more fully in collective life by interpellating them as national actors, mothers, educators: workers even fighters. On the other hand, they reaffirm the boundaries of culturally acceptable feminine conduct and exert pressure on women to articulate their gender interests within the terms of reference set by nationalist discourse.2
These insights about intersectionality are equally important to understanding the morphology of legislative rules relevant to sexual crimes and the evolution of honour
1 Nadera Shalhoub-Kevorkian, Militarization and Violence against Women in Conflict Zones in the Middle East: A Palestinian Case-Study (New York: Cambridge University Press, 2009) 21 and 78. 2 Deniz Kandiyoti, “Identity and its Discontent: Women and the Nation” (1991) 20(3) Millennium Journal of International Studies 429, 432-433. 138 violence as a sign of loyalty. The intersectionality approach helps to explain the causes of Palestinian women’s double oppression, and the way in which this is manifested in legislative rules or, as described in Chapter Four the outcome of intersectionality in the legislative process. These manifestations of double oppression assist judges who maintain their own extreme interpretations when they adjudicate in cases of honour violence.
Because honour-based violence has been the subject of specific legislative reform (such as Article (340) of the Penal Code No. (16) of 1960) the legislative process could be described as “dynamic”. Honour violence has different purposes, and these purposes are variable, depending on the priorities of each nationalism project. By contrast, the judicial process could be described as “static” since judges seem more inclined to apply the traditional honour code. However, the thesis argues in this chapter that, in important aspects, the legislative process is just as static as the judicial process. That is, honour’s traditional purpose as a sign of loyalty prevails in the different nationalism projects. The versatility of the concept of honour means that it remains embedded in both the Penal Code No. (16) of 1960 and the Palestinian draft of the Penal Code of 2011, and the appearance of dynamism is, in fact, illusory.
This chapter is divided into three main sections. The first discusses the legislative activity within the Jordanian nationalism project. The second focuses on the legislative activity during the state of struggle against occupation and analyses the intersection of social divisions within the Palestinian Liberation Organization (PLO) and the Israeli nationalism projects. The third section of the chapter discusses the legislative activity within the Palestinian state nationalism project.
2. Honour Violence in the Post-Colonial Nationalism Project: The Legislative Activity of the Jordanian State Nationalism Project
As discussed in Chapter Two, the Jordanian army occupied the West Bank after the withdrawal of the British Mandate from Palestine on 15 May 1948. In April 1950, King Abdullah declared the formal annexation of the West Bank to Trans-Jordan. The newly established state was known as the Hashemite Kingdom of Jordan.3 The new Jordanian
3 Mark I. Gruhin, “Jerusalem: Legal and Political Dimension in a Search for Peace” (1980) 12(1) Case Western Reserve Journal of International Law 169, 179. 139 state which contained the West Bank represented an institutionalized state form of nationalism.4
Chapter Four discussed the fact that the Jordanian state nationalism project bears resemblance to most state nationalism projects in the Arab world during the post- colonial era. These nationalism projects were assigned the duty of managing the state’s institutions. Accordingly, an extensive legislative process took place in the newly established country that regulated all aspects of life including the civil, the commercial and the criminal. The secular legislative process was chiefly inspired by the French legal system. However, nationalists were responsible for “reproducing” traditions in the core principles of the new nation. In other words, legislation had to strike a balance between tradition and modernity.5
This section is divided into three parts. The first discusses the various manifestations of honour-based violence or the state of power imbalance resulting from honour violence justified in the Penal Code No. (16) of 1960, by illustrating the most prominent sexual crimes dealt with in the Code. The second part explains the principles of punitive policy by illustrating the shortcomings of the articles concerning sexual crimes. The third discusses the formation of the provisions on sexual crimes, and the state of double oppression resulting from the intersection of gender, class and age, and the main objectives of the Jordanian nationalism project. The aims of this section are: to prove that the dimensions of the honour-based violence problem are more complex than they appear in Article (340), which is considered by many scholars as the pillar of a progressive approach to honour; and to prove Abdo’s argument that the institutionalized state form of nationalism marginalized women’s rights and assigned only a minor value to their emancipation.6 Ostensibly, nationalists attempted to strike a balance between tradition and modernity. However, honour as a sign of loyalty was an indispensable principle in the newly established state. The following section highlights how gender relations were used as a tool to maintain that balance and explains how honour violence prevailed in the Penal Code.
4 Nahla A. Abdo, “Women of Intifada: Gender, Class and National Liberation” (1991) 32(4) Race and Class 19, 22-23. 5 Lama Abu Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies” (2010) 2 Comparative Law Review 2, 18. 6 Abdo, above n 4, 22-23. 140
2.1 The Manifestation of Honour-based Violence in the Penal Code No. (16) of 1960
The essence of the legal system is its reliance on what is identified as a social contract theory which assumes that societies should not be ruled by force or patriarchal authorities. Instead, societies should be ruled by their own people. In other words, people are the “source of all powers”.7 People delegate a part of these powers to a group of representatives who bear the responsibility of looking after the collective social interests of the community.8 Social contract theory requires all individuals to compromise part of their rights for the sake of regulating conflicting interests and guaranteeing justice and equality for all.9
According to social contract theory, the main objective of the Penal Code No. (16) of 1960 is to protect the common social values, since these values preserve the national identity. Thus, as discussed in Chapter Two, traditions and shari’a law are still perceived as formal sources of the Jordanian Penal Code. This is despite the fact that this Penal Code was transplanted from the French Penal Code. Penal Codes have three other main purposes: First, they are a tool to bring about reconciliation between conflicting interests that are highly likely to occur among different individuals. Therefore, the law’s main purpose is to protect these conflicting interests and identify a penalty that is consistent with the severity of the violation. Secondly, they enhance justice and equality in order to support the peace of society; this is achieved by punishing each person for the crime that she or he committed. In other words, in theory, no one can evade the justice system. To achieve this purpose, all individuals must be equal before the law and their basic human rights must be respected. Thirdly, they are a tool for achieving security and legal stability. Security can be achieved through
7 Yousef Karam, Tareekh Al-Falsafa Al-Mo’sera (Al-Qahira: Dar Al- Maaref, 1957) 11. [Trans: Yousef Karam, The History of Modern Philosophy (Cairo: Dar Al-Maaref, 1957) 11]. 8 Ibid. 9 Ibid. 141 applying the principle of: “There is no crime without a provision and no penalties could be imposed except for those that are provided for by law”.10
However, Jean-Jacques Rousseau, the most prominent social contract philosopher, opposed the idea of introducing the concepts of equality and justice to the private sphere of the family, in his book, Emile or Concerning Education.11 As discussed in Chapter Three, Rousseau argues that family relations have a unique nature, and a result, equality does not suit the private domain.12 Rousseau also considers that legal codifications are designed to achieve justice and equality for half of society namely men, while the second half is totally overlooked. In other words, women are supposed to be controlled by the familial legal system and excluded from the jurisdiction of the state’s legal system which is designed to rule the public sphere only. Carol Pateman argues:
The classical theories of the social contract which are widely influential and have laid the foundation for a common sense understanding of Western social and political order, located women in the private domain, which is not seen as politically relevant. As nationalism and nations have usually been discussed as part of the public political sphere, the exclusion of women from that arena has affected their exclusion from that discourse as well.13
Consequently, women’s exclusion from the public sphere, and from the various nationalism projects, means that achieving the objectives of the Penal Code must take place under the umbrella of protecting commonly held social values and the normative social construction of gender. Thus, priority is always given to the task of protecting the social norms. This transformed the Penal Code into a tool that defends the asserted social values set by tradition and enshrined in law at the expense of the individuals’ rights and interests. The final product of this legislative process is a “gender blind” Penal Code with a unique punitive policy (philosophy) in which the concept of honour always prevails. The next part of this chapter highlights the different manifestations of honour-based violence in the most serious sexual crimes recorded in the Code Penal No. (16) of 1960. The crimes that are subject to analysis are rape, incest, adultery and molestation. The goal of this analysis is to illustrate the state of power imbalance in
10 Mohmmad Sobhi Najem, Qannon Al-Oqobat: Nazaryat Al-Jareema (Amman: Dar Al-Thaqafa Li Nasher w Tawzee’,1996) 29. [Trans: Mohmmad Sobhi Najem, The Penal Code: The Theory of Crime (Amman: Dar Al-Thaqafah for Publishing and Distribution, 1996) 29]. 11 Jean Jacques Rousseau, Emile or Concerning Education (Boston: D.C. Heath and Company, 1889) 18- 19. 12 Susan Moller Okin, Justice, Gender, and Family (New York: Basic Books, 1989) 48. 13 Nira Yuval-Davis, “Nationalist Projects and Gender Relations” (2003) 40(1) Narodna Umjetnost 9, 10. 142 these crimes since they regulate sexual behaviour. It is evident that this regulation is directly connected to the concept of honour. It is important to mention that Jordanian modifications to the Penal Code which have taken place since June of 1967 are not applied in the West Bank after the split of the two regions as a result of the Israeli occupation. This means that the Jordanian’s modifications of rape and adultery provisions which took place in the 1990s have not been incorporated into the version of the Penal Code No. (16) of 1960 that is applied in the West Bank.14
2.1.1 The Crime of Rape
Rape is regulated under Chapter Seven of the Penal Code No. (16) of 1960 which is titled “Crimes against Morality and Public Decency”. Article (292) defines rape crime as “committing a non-consensual act of sexual intercourse with a female who is not one’s wife”. The penalty for rape is identified in Articles (292), (293), (294) and (295). These legal provisions are quoted to show their shortcomings, and the prevalence of the traditional honour concept in them.
Paragraph 1 of Article (292) states that “whoever rapes a female who is not his wife must be punished with imprisonment associated with temporary hard labour for a minimum of five years”. Obviously, this paragraph states the penalty for a crime of rape which has the full legal elements,15 and is not associated with any aggravating circumstance. It is noteworthy that in the Jordanian Penal Code, temporary hard labour extends from 3 to 15 years. Paragraph 2 of Article (292) states that “whoever rapes a female whose age is less than 15 years old should be punished with incarceration associated with hard labour for a minimum of seven years”. Article (293) states that
14 Ma’had Al-Hokook Fi Jame’at Birzeit, “Aliyat Damj Al-Tashri’at Wefqan Li Moso’at Al-Tashri’at Al- Ordinya”
“whoever rapes a female who cannot resist because of physical or mental disability or as a result of deception or coercion should be punished with temporary hard labour”.
In the same vein, paragraph 1 of Article (294) states that “whoever rapes a female whose age is less than 15 years old must be punished with temporary hard labour”, and paragraph 2 of Article (294) states that “whoever rapes a female whose age is less than 12 years old must be punished with a period of temporary hard labour for a minimum of 5 years”. Article (295) states that “if a female whose age is between 15 and 18 years was raped by her descendants or ascendants or custodians, the perpetrator must be punished with temporary hard labour”. Finally, Article (300) states that “the penalties in the Articles (292), (293) and (294) must be aggravated if the perpetrator was a descendant, ascendant, custodian, or a guardian or a person who has a legal authority over the victim”.
A. Considering the Partial Legal Capacity of the Victims
The manifestations of power imbalance built into the legal system are evident in these articles, and they reflect a high level of legislative confusion. For instance, the legislation states two different penalties for raping a female who is less than 15 years old. The paradox is that the penalty that is stated in paragraph 2 of Article (292) is aggravated, while the penalty stated in paragraph 1 of Article (294) is less than the punishment of the general form of rape crime (rape without aggravation). There is even more confusion when the legislation states that the penalty for raping a female younger than 12 is hard labour for a minimum of five years. This penalty is the same as that for simple rape stated in paragraph 1 of Article (292) despite the fact that the victim’s young age can be considered as an aggravating circumstance. The only assumption that helps explain this confusion is that Article (292), regulates rape crimes that take place without the consent of victims. On the other hand, Articles (294) and (295) regulate rape crimes that take place with the consent of young victims who are younger than 18 years old. These victims do not enjoy full legal capacity. The fact that these victims do not enjoy full legal capacity because of their young age does not change the characterization of the act from one of rape and transform it into one of adultery. That is, their consent is still invalid. However, the partial legal capacity that they acquire can be a reason for mitigating the perpetrator’s penalty. This assumption helps to explain the vague nature of these articles. This conclusion is intimated from the general rules of 144 civil law which connect legal capacity and age.16 According to these rules, whoever is younger 7 than years old (the age of reasoning) does not enjoy legal capacity, but whoever is between 7 years to younger than 18 years old enjoys partial legal capacity. Finally, whoever is 18 years and above enjoys full legal capacity.17 However, it is worth considering that victims who are younger than 18 are not fully aware of the consequences of their consent in criminal matters. In other words, these age categories and considering women’s partial legal capacity to mitigate the penalty of the perpetrators constitute victim blaming since they are the vessels of their families’ honour. In rape crimes where the victims end up with no prospects,18 the partial legal capacity of the victims should not be considered, and perpetrators must be subject to aggravated penalties. Therefore, the Penal Code must re-evaluate its own position with regard to the age of legal capacity. This step is essential to protect the rights of female 19 victims.553F
B. Considering the Perpetrator’s Awareness of the Aggravating Circumstances
The manifestation of power imbalance resulting from the concept of honour is evident in Article (86) of the Penal Code. This article is exploited to mitigate the penalty for rapists, since their victims are viewed as complicit. That is, the legislation in paragraph 2 of Article (292) introduces the victims’ young age as an aggravating circumstance. Besides the fact that the aggravated penalty is not a deterrent, the victim’s young age as an aggravating circumstance can be useless in some cases. That is, the perpetrator can invoke his unawareness of the victim’s actual age based on Article (86/2) of the Penal
16 Ibid, 35. See also Abed Al-Rahman Tawfeeq Ahmad, Al-Jara’em Al-Waqi’a Ala Ashkhas Wifqa Ahdath Al-Ta’delat (Amman: Dar Al-Thaqafa Li Nasher w Twzee’, 2016) 277-278. [Trans: Abed Al- Rahman Tawfeeq Ahmad, Crimes against the Person According to the Latest Modifications (Amman: Dar Al-Thaqafa for Publishing and Distribution, 2016) 277-278]. The Penal Codes in the Arab world do not clarify the issue of the age of legal capacity in criminal matters. Moreover, criminal law scholars have not reached a unified position on whether the Penal Code’s rules must follow the private law rules in this matter or have its own rules. Notably, the Jordanian Penal Code has no clear opinion concerning the age of legal capacity required to prove criminal liability. 17 Article (294) of the Penal Code No. (16) of 1960 classified women who express their consent with a partial legal capacity to have sexual intercourse with non-relative males in different age categories. The first age category is females between 12 to less than 15 years old. The second age category is females from 7 to less than 12 years old. However, the Code condoned regulating the rules related to the age category from 15 to less than 18 years old. 18 BBC News, Lemtha La Yakshef Dahya Al-Ghtisab Tafaseel Al-Hadeth (20/4/2019)
Code No. (16) of 1960 which states that the perpetrator is exempted from the aggravating circumstance if he is unaware of its existence.20 This scenario can be avoided by stating explicitly that the actual age of the victim is what matters, and the perpetrator’s lack of awareness of the victim’s actual age should not be an excuse to exempt him from the aggravating circumstance.21
C. No Minimum Limit of the Aggravated Penalty
Another way in which female victims are regarded as accomplices in rape crimes, is that judges are given a discretionary sentencing authority in relation to aggravate penalties. For instance, Article (293) is supposed to represent an aggravating condition where the victim of the rape crime is a female who has a physical or mental disability or who was subject to coercion. Accordingly, it is expected that the penalty should be proportional to the severity of the criminal action. However, the penalty for rape which is associated with coercion is temporary hard labour. In other words, the legislator paved the way for judges to sentence without identifying the minimum limit of the aggravated penalty. This means that judges can use their discretion when deciding on the penalty, based on the identified limit of temporary hard labour from 3 to 15 years. This makes the aggravation meaningless in terms of sentencing. To guarantee the application of an aggravated penalty, it would be safer to identify the minimum limit of time added to a sentence as a result of the aggravation.
D. The Lack of Aggravating Circumstances
More importantly, the legislation contains insufficient deterrents for aggravating circumstances. For instance, the Penal Code does not expressly treat raping children younger than 7 years old as an aggravating circumstance. It also does not consider pregnancy resulting from rape as an aggravating circumstance, despite the fact that it considers sexually transmitted diseases and the loss of virginity as aggravating circumstances according to Article (301).
20 Al-Said, above n 15, 33. 21 For instance, Article (478) of the British Mandate’s Penal Code No. (74) of 1936 that is still applied in the Gaza Strip states that if the defendant in the case of sexual crimes is unaware of the victim’s actual age, this unawareness cannot be legally invoked. 146
E. Lenient Treatment of Some Forms of Rape: “Seduction”
The picture becomes even bleaker after reviewing Article (304). Article 304/1 states a fundamental form of rape that is marginalized by legislation. This crime is regulated under the title of the crime of “seduction”. The article states:
Whoever deceived (seduced) a female whose age is above 15 years old through promising this female of marriage and had a sexual intercourse with her that caused a loss of virginity must be punished with incarceration from 3 months to a year.
The article shows that the penalty for the perpetrator is not consistent with the severity of his criminal act. Females who are above 15 and less than 18 do not enjoy the full legal capacity to give consent. Therefore, they should benefit from stronger legal protection. Additionally, according to Article (293), deception of the victims by the perpetrator is considered as an aggravating circumstance.22 Moreover, according to Article (301) the loss of virginity in the sexual assault is an aggravating circumstance. Thus, Article (304) seems ambiguous and unjustifiable.
This point is illustrated by referring to Case No. 146/2011, which was adjudicated by the Court of Cassation.23 In this case, the Court of Cassation confirmed the judgment of the Appellate Court that declared the innocence of the perpetrator. This is despite the perpetrator’s commission of full sexual intercourse with a 17-year old female after he promised her marriage. The reasoning of the Court of Cassation revolved around the full liability of the 17-year female that she should be held culpable for agreeing to have sexual intercourse. This severe judicial approach stems directly from Article (304) which is described as lenient with perpetrators and harsh on victims. In other words, this provision punishes the victims for their victimization since they are viewed socially as the actual perpetrators.
F. Protecting Family Ties as a High Priority
The Penal Code elevates the priority of protecting family ties and honour at the expense of rape victims’ rights. For instance, rape is identified as a crime against public morality
22 Al-Said, above n 15, 27-31. 23 The Palestinian Legal and Judicial Database, Jareemat Al-Ighwa’ (30/6/2016)
G. The Exempting Excuse in Rape Crimes
Family honour prevails in Article (308), which provides an exempting excuse for the rapist if he marries his victim. The article states that “if the rapist marries his victim, the legal pursuance of the act must stop immediately”. The rapist can benefit from this exempting excuse several times.
2.1.2 The Crime of Incest
Criminal legal jurisprudence defines incest as “a banned consensual sexual relationship between two persons of blood relationship resulting in indecency according to religious 24 and cultural standards, depending on the degree and type of kinship”.558F Incest is
24 Al-Said, above n 15, 261. Incest is also defined as “adultery that takes place between ancestors and descendants whether they are legitimate or not, brothers and sisters, siblings of half-blood or relatives by marriage of similar degree or between two offenders, either one is in the trust of the other”. See Khadeja Hussein Nasir, “Incest: Murder of the Soul” (A Report of the Independent Commission for Human Rights, 2012) 29. 148 criminalized in the Penal Code No. 16 of 1960 and regulated under Chapter Six as a misdemeanour against family.25 Article (285) states:
The consensual sexual intercourse that takes place between legitimate or illegitimate decedents and ascendants or between siblings or half siblings or between whoever have affinity relations or between two defendants where one of them has a legal or actual authority over the other, both defendants are punished with incarceration from 2 to 3 years.
Additionally, Article (286) states: “Incest can be pursued legally after filing a complaint to the Public Prosecution by a relative or an affinity-related person up to the fourth degree”.
The first element of the crime of incest is the criminal act of full sexual intercourse. The legal definition of the crime of incest resembles that of adultery. The only difference between the two crimes is that incest takes place between two blood-related participants, while adultery takes place between those without such a relationship. Accordingly, it is evident that the sexual offence of incest requires proof of complete sexual penetration. That is, the act of intercourse is crucial to prove the occurrence of incest, and without proof of full penetration no incest is committed. In this regard, Al- Said states that if there is no sexual intercourse, there is no crime of incest.26
The second element is the existence of blood relations with and legal or actual authority over the victim. The Penal Code has surrounded family and blood relations with a high level of protection by comprehensively listing and criminalizing the acts that may threaten family ties.27 Incest is one of these. For the purpose of protecting family from the degeneration that is caused by incest, the family ties that are subject to protection are listed explicitly in law. These include: the ties between decedents and ascendants, the ties between siblings and half-siblings; affinity ties such those between a husband and his mother-in-law or his step daughter. The law also protects the relationship between custodians, guardians, employers and whoever is under their authority.
25 It is worth mentioning that in the Gaza Strip, incest is a felony against public morality and decency. Moreover, the British Mandate’s Penal Code that is still applied in the Gaza Strip defines incest as a non- consensual sexual act that occurs with an unmarried female blood relative whose age is between 16 to 21 years old. In this regard, Article (155) of the Mandate’s Law states: “Whoever commits illegitimate sexual intercourse with an unmarried girl of his descendants or his wife’s descendants or in his trust, aged over 16 to 21 years old, or is abetted by another person to commit illegitimate intercourse with her, he shall be deemed perpetrator of a felony punishable by (5) years in prison”. 26 Al-Said, above n 15, 262-267. 27 These acts are adultery, incest and children’s abduction. 149
The third element is that the female must be aged 18 and above. The law does not explicitly mention the female’s age in incest crimes. However, Article (295) considers sexual intercourse that takes place between a blood relative and a consensual female whose age is between 15 to less than 18 as rape. Consequently for an incest crime to be considered under Article (285), the sexual act must take place between a male and a female blood relative who is 18 years old or older.
The fourth element is the female’s consent. Incest is a form of adultery that takes place between blood relatives. Therefore, it is a consensual crime that is based on the consent of the two defendants (perpetrators).
The fifth element is the intent that is based on the free will of the two defendants. According to the general rules, the intent of perpetrators consists of two parts: the full awareness of having a blood relationship; and free will expressed without coercion.28 This consent reflects the acceptance of the act and all its future consequences. Consent can be demonstrated in several ways, including in implicit ways. It should also be expressed by a person who is in a “coherent state of mind” and enjoys full legal capacity. If full intent is proved, both defendants are equally culpable and receive the same punishment according to the general rule of Article (76) of the Penal Code which states:
If several persons together commit a felony or a misdemeanour of multiple acts and each one of them committed one act or more of that crime intentionally, they shall all be considered accomplices and each one of them shall be punished according to the law, even if he or she committed that crime independently.
Theoretically, if it is proved that the consent of the female aged 18 years or above was expressed as a result of coercion the blood-related perpetrator, this consent is null. Such an act must be characterized as rape based on paragraph 1 of Article (292), while the blood relationship will be regarded as an aggravating circumstance based on Article (300).29
28 Law identifies two forms of coercion, physical and mental. Physical coercion is defined as “the physical force that is used against the victim to strip his/her will”, while mental coercion is defined as “the factor that paralyses will and causes its inability to examine the right and wrong. This is because of fearing an imminent danger or harm that cannot be reversed or escaped from but by perpetrating the crime”. See Nasir, above n 24, 38. 29 Al-Said, above n 15, 266. Unlike the Penal Code No. (16) of 1960, the Mandate’s law that is applied in the Gaza Strip has a different approach to defining intent in crimes of incest. This law takes into consideration the fact that the act of incest takes place between two incompatible persons. Thus, in incest 150
A- Elevating the Priority of Protecting Family at the Expense of the Victims’ Rights
The elements of the crime of incest show that incest is deeply connected to the concept of honour. Protecting family honour is the highest priority, and incest is defined as a crime against family. This indicates that family and society are the focus of the legal protection, at the expense of victims’ need for protection. Undoubtedly, not only does incest destroy family ties and intimate familial relations but it also seriously affects the victim’s psychological, emotional and sexual development. The legislation explicitly considers the impact of this crime on family ties and social morality without considering the impacts on the victims. Moreover, blood relations are an aggravating circumstance in the cases of rape. However, in incest crimes blood relations are an element of the crime. Blood relationship should be considered as an aggravating condition because this close relationship facilitates the access of the offender to his victim. This is consistent with the general policy of the Penal Codes which aggravates the punishment of the perpetrator if he has an easy access to his victim. This thesis argues that the legislation did not follow this approach since this crime is related to the honour concept and the right of men to control women’s bodies.
According to Article (286), incest can be legally pursued by Public Prosecution, based on a written complaint filed by male relatives or those affinity-related up to the fourth degree. This conditional legal pursuance, and victims’ deprivation from filing complaints against the perpetrators, are fundamental signs of pushing women into the private sphere by depriving them of the benefit of the justice system that is concerned crimes, females are victims and males are perpetrators. However, to consider the female as a victim, she must be unmarried at the time of the occurrence of the sexual act and aged between 16 to 21 years old. These conditions indicate that law considers married females to be fully enjoying the legal capacity to express their consent even if their age is under 21 years old (the age of acquiring the full legal capacity according to the Mandate’s law). It is noted that this law does not protect females whose age is above 21 years old, or married females even if their age is less than 21 years old. Accordingly, these categories of women are viewed as adulterers and offenders exactly like females whose age is 18 years old and above according to the Penal Code No. (16) of 1960. The paradox in the Mandate’s law is that it differentiates between two coercive sexual acts committed by blood relatives based on the age of the victim. That is, the same coercive sexual act between blood relatives can be either incest or rape. According to this law, the felony of incest takes place if the female blood relative unmarried is between 16 to 21 years. However, if the victim’s age is less than 16 years old, the same coercive sexual act is characterized as rape. This distinction between the same coercive sexual acts based on the age of the victim cannot be legally and socially justified especially in light of the fact that most females in all of these age categories are vulnerable to family sexual violence regardless of their age. 151 with regulating the public sphere only. In most cases, family members try to blackout the incident in order to protect family honour.30 Even if a family member files a complaint, it may be withdrawn at any stage of litigation due to a lack of confidence in the formal justice system. This is illustrated by Case No. (1147/2008) which was withdrawn from the Ramallah Magistrate’s Court in 2011 to protect family honour. The proceedings of the case are follows:
H.A filed a complaint to Public Prosecution against Y.S and R.S accusing them of sexual assault against his sister. The accused were her relatives by affinity, R.S being her father in law and Y.S being her brother in law. The complaint states that the in laws attempted to exploit the fact that the victim's husband was in prison and assaulted her sexually while living in their house. The complainant was surprised that the Public Prosecutor considered his sister as a participant in the criminal act, and consequently the complainant dropped the case during the trial procedures.31
To protect the private sphere of the family, the crime of incest is meant to be subject to a “statute of limitations”, which prevents any legal intervention after the passage of a specific period of time identified by law. Unfortunately, with this type of crime that is surrounded by confidentiality and concealment, a victim’s access to the justice system is inevitably difficult. This enables the offenders to evade justice while victims suffer the long-term effects of the crime. Moreover, victims who experience sexual abuse inside their family at a very early age often continue to experience it during adulthood. However, any attempt to seek justice on their part will be ineffectual especially as the law portrays them as accomplices to the crime after a certain age.
B. Considering the Victims as Complicit
In crimes of incest, the law explicitly depicts females as complicit. For instance, limiting the definition of incest to full sexual intercourse deprives women of adequate protection when other acts of molestation take place in the context of incest.32 Moreover, the Penal Code defines the age of 18 as a sign of females’ enjoyment of the full legal capacity to express consent for sexual intercourse with a blood relative. As noted above, under Article (295), consensual sexual intercourse that takes place with a female blood relative aged between 15 and 18 years old is considered as a rape felony. The question here is: What is the difference between a female aged 17 years and 10
30 Nasir, above n 24, 39. 31 Ibid, 35. 32 Ibid, 32. 152 months and one aged 18? Obviously, the law ignores the long history of women’s oppression. Most females do not choose to engage in this type of relationship due to their awareness of the future consequences. This means that being above 18 years old and enjoying full legal capacity are strong reasons for a female to refuse this type of relationship, unless she is experiencing different forms of coercion. If she is above 18 years old and willingly chooses to engage in sexual intercourse with one of her blood relatives, then there are two possibilities: either she does not enjoy the full legal capacity that enables her to be fully liable for her action before the law; or she is under severe pressure. In both cases, protection for the vulnerable woman needs to be guaranteed. Taking into account the long history of the oppression of women and the ascendancy of the patriarchal authority, it is plausible in incest cases to assume that the female was under pressure, rather than assuming that she approved taking part in a sexual act that will eventually destroy her future and social status. Case No. 1147/2008, discussed above, demonstrates the impact of incest on a woman’s life. The victim in that case gave birth to a child from the illicit relationship and she is currently living in a women’s shelter deprived of the chance to see her children and live a normal lifestyle. Public Prosecution considered this woman guilty for several reasons, including her failure to defend herself, and her silence, that is perceived as a form of consent which makes her complicit.33
C. The Lack of Differentiation between Consent and Submission
Understanding incest as a form of adultery that takes place between blood relatives raises the problematic issue of the nature of consent that is expressed by women in incest cases. In this regard, Al-Said argues that it is essential to differentiate between consent and submission (obedience). Submission does not mean consent. Al-Said also argues that the crimes that are committed against children, juveniles and women in the family sphere are associated with submission and obedience resulting from mental coercion.34 Reviewing the provisions that regulate rape crime shows that applying
33 Ibid, 35. 34 Al-Said, above n 15, 266. Al-Said relies on the British judiciary to distinguish between consent, submission and obedience. He states that the British judiciary distinguishes between obedience, consent and submission of a female to her male relative to commit sexual intercourse. There is a fundamental difference between the three. Showing obedience and submission does not mean that the victim is expressing her consent. However, expressing consent imply submission and obedience. The legislative use of the term “consent” in the context of incest crimes reflects the legislative approach of considering females as complicit in the crime. Ibid. 153
Article (300) on Article (292) covers the scenario of a woman who is 18 years old or above and exposed to a forced sexual assault by a blood relative. However, judges tend to apply Article (285) in this case. This is due to a lack of judicial differentiation between consent and submission.
Depriving women of legal protection by portraying them as accomplices in the incest crime highlights the state’s tolerance for compromising women’s rights in order to protect family honour. This legislative approach allows the punishment of women according to the family justice system and its code of honour. In this case, incest crimes’ victims are punished twice for the same act, once under the state’s justice system as perpetrators, and again according to the family honour code. This situation becomes more tragic in light of the fact that male perpetrators can continue their lives normally after committing acts of incest, while women’s lives are immensely affected after engaging in this act.
2.1.3 The Crime of Adultery
Adultery is regulated in Chapter Six of the Penal Code as a crime against family. The manifestations of honour-based violence are evident in the penalty for the crime. Adultery is defined as consensual sexual intercourse that takes place between two adults. Article (282) states: “1. The female adulterer is punished with imprisonment from 6 months to two years. 2. The male partner is punished with imprisonment from 6 months to two years if he is married. Otherwise he is punished with imprisonment from 3 months to a year”.
The nature of the act of adultery indicates that both perpetrators are equal partners in the same crime. Therefore, both must be subject to the same penalty.35 The discriminatory penalty stated in Article (282) is a fundamental breach of this principle of equal treatment, because as Article (76) states:
If several persons together commit a felony or a misdemeanour of multiple acts and each one of them committed one act or more of that crime intentionally, they shall all be considered accomplices and each one of them shall be punished according to the law, even if he or she committed that crime independently.
Females are punished more harshly since they are the preservers and the bearers of family honour. On the other hand, men’s sexual behaviour is not subjected to strict
35 Ibid, 239. 154 social vigilance. Therefore, a male adulterer’s punishment is equal to a female’s punishment only if the man is married because of the assumption that adultery constitutes a threat to family ties. This means that if the man is unmarried, his adultery is a trivial matter. The same rule applies to the crime of having a mistress, stated in Article (283). The act is only sanctioned if it is performed by a married man. Otherwise, it does not constitute a crime.
2.1.4 The Crime of Molestation
Molestation is defined as a fundamental breach of the victim’s sexual chastity.36 Article (296) states: “1. Whoever molested an individual by resorting to violence and or threat must be punished with temporary hard labour for a minimum of four years. 2. The minimum penalty can be increased up to seven years if the victim’s age is less than 5 years old”. Additionally, Article (298) states: “1. Whoever molested a child who is less than 15 years old without coercion must be punished with temporary hard labour. 2. The minimum period of the penalty can be raised up to seven years if the child is less than 12 years old”.
Ostensibly, molestation appears as a gender-neutral crime, since both gender groups may be subject to this crime. However, similar to other sexual crimes, regulation of the crime of molestation is related to the concept of honour.
Women are depicted as offenders in the criminal act. Therefore, they must be criminally liable. For example, in Article (298), the law differentiates between victims who are less than 15 years old and those who are less than 12 years old. The victim’s belonging to the first age category is not considered as an aggravating circumstance while their belonging to the second age category is considered as an aggravating circumstance. This is even though victims in both age categories do not enjoy full legal capacity. The law also does not protect victims who are above 15 years old but less than 18 years old and who were subject to molestation with no coercion. This is even though they do not enjoy full legal capacity and therefore should not be deprived of legal protection. Moreover, the perpetrator can invoke his unawareness of the victim’s actual
36 Ibid, 51. 155 age to avoid the application of the aggravating circumstance stated in Article (298), based on Article (86/2) as discussed previously.37
The main objective of the molestation provisions is to protect the social fabric of the collective society. For example, in order to protect the private family sphere, molestation is not criminalized in the context of incest. That is, it can be considered as “attempted incest”. However, incest is a misdemeanour and, under Article (71), the Penal Code does not criminalize attempts to commit misdemeanours, unless this is stated explicitly by a special provision. The legislative approach of ignoring acts of molestation that take place in the family sphere reflects the desire to “cover up” crimes inside that domain to protect family honour at the expense of victims.
Table 1 summarizes the main sexual crimes in the Penal Code No. (16) of 1960 to facilitate understanding of their related rules.
37 In this regard, the Jordanian Court of Cassation has two different conflicting approaches. The first approach is implied from the judgment No. 92/1975. This judgment states that the perpetrator’s awareness of the actual age of the victim is not necessary. Thus, the perpetrator cannot invoke his lack of awareness of the victim’s real age. The same approach was adopted by the judgment No. 241/1977 in which the Court of Cassation denied the rapist’s invoking the lack of his awareness of the actual age of his victim. The court states that committing the act of rape is risky, therefore, the rapist must bear the responsibility of his risky act. On the other hand, the Court of Cassation has a different opinion in the judgment No. 242/1985. In this judgment, the court decided that awareness of the perpetrator concerning the actual age of the victim in rape and molestation crimes is necessary to apply the aggravated penalty. Ibid, 32-33. 156
Table 1
The Main Sexual Crimes in The Penal Code No. (16) of 1960
West Bank
Issues Rape Adultery Incest
Marital Status No impact on prosecution If the female is married, No impact on prosecution and penalty and penalty husband has the exclusive
right to file a complaint
The Perpetrators Male perpetrator (offender) Two perpetrators Two perpetrators (offenders) and female victim (offenders)
The Subject of The perpetrator is punished Female perpetrator is The two perpetrators are punished with Punishment punished more severely than same penalty equally her male partner
Females’ Age -Above 15 without her 18 years old and above 18 years old and above with a blood consent relative
-Less than 15 without her consent
-From 12 to less than 15 with her partial consent
-From 7 to less than 12 with her partial consent
-From 15 to less than 18 with her partial consent and with blood relative
-Above 15 without her consent and blood relative
-Less than 15 without her consent and blood relative
-From 12 to less than 15 with her partial consent and blood relative
157
- From 7 to less than 12 with her partial consent and blood relative
Nature of the Non-Consensual Consensual Consensual Crime
Intent -Females less than 7 no legal Public Prosecution must Public Prosecution must prove consent. capacity. No consent prove consent However, there is no differentiation between submission and consent -Females from 7 to less than 18. Partial legal capacity. Possibility of partial consent.
-Female above 18. Full legal capacity. Coercion must be proved
Sentence -Temporary hard labour Incarceration between 6 Incarceration between 2 to 3 years (according to age minimum 5 years months to 2 years for
categories) women and married men -Temporary hard labour
minimum 7 years Incarceration between 3 months to one year for -Temporary hard labour unmarried men
-Temporary hard labour minimum 5 years
-Temporary hard labour
- Temporary hard labour minimum 5 years+ increase from one third to half of original penalty
-Temporary hard labour minimum 7 years+ increase from one third to half of
158
original penalty
- Temporary hard labour+ increase from one third to half of original penalty
- Temporary hard labour minimum 5 years+ increase from one third to half of original penalty
Misdemeanour/ Felony Misdemeanour Misdemeanour Felony
Characterization A crime against public A crime against family A crime against family morality and decency
2.2 The Pillars of the Punitive Policy of the Penal Code No. (16) of 1960: The Legislative Philosophy Concerning Sexual Crimes
The discussion of Article (340) in Chapter Two indicated that the position of the Jordanian legislature fluctuates between honour’s new purpose of striking a balance between traditions and modernity, and its original purpose of guaranteeing women’s loyalty to their families and society. However, the preceding examination of the most prominent sexual crimes in the Code shows that the original purpose of honour, as a sign of loyalty, prevails.
It is evident that the Jordanian legislature did attempt some modernisation of the Penal Code in relation to honour killing and sexual crimes. For instance, it borrowed some elements of the crime of passion and assimilated them into the provisions regarding honour killing. However, reflecting the indispensability of honour in the process of state building as a sign of women’s loyalty, honour underpins the main sexual crimes in the Code Penal Code No. (16) of 1960. Some of the manifestations are: the unjustified differentiation between rape and incest in some cases; considering females’ partial legal capacity in rape cases; and classifying sexual crimes as crimes against morality, public 159 decency and family. Accordingly, the pillars of the punitive policy that underpins the Penal Code No. (16) of 1960 can be summarized as follows:
1. The institution of the family and the values of the collective society are protected at the expense of the individual’s rights.
2. Women are criminalized even if they are victims. In sexual crimes, women are the victims and the offenders at the same time; a manifestation of which was discussed with regard to age in relation to the legal capacity of female rape victims.
3. Women are pushed to the private sphere where justice is not meant to be applied. Justice is a value that is exclusively reserved for the public sphere.
4. Women are regarded as commodities whose bodies are owned by the men of their families.
5. Laws governing sexual crimes offer insufficient legal protection to women. The legal system intends to leave room for the operation of the traditional honour system. In this way, law delegates part of the state’s power to the informal familial justice system.
Chapter Six demonstrates that judicial practice is also inspired by these principles.
2.3 The Formation of Sexual Crime Provisions in the Penal Code No. (16) of 1960
Having highlighted the problems of the current Code provisions, it is essential to shed light on their origins and causes. For this purpose, an intersectionality approach is used to give insight into the law-making processes that produced the current provisions. This approach assists in answering an important question: Why did the old purpose of honour as a sign of loyalty prevail? In other words, a discussion of the legislative activity of the Jordanian nationalism project begins with highlighting the outcome of the intersection of social divisions. So, it is essential to elucidate the actual process of intersection that led to the outcome discussed above in section 2.1 of this chapter.
Chapter Four explained the two main levels of analysis in the intersectionality approach at the macro level. These are: identifying the related social divisions and examining the interaction of these social divisions, or what is called the concrete social relations. Accordingly, this part of the section identifies the social divisions and the concrete social relations resulting from intersecting the related social divisions at the
160
micro level in the Jordanian state nationalism project. This analysis shows that the concrete social relations represent the process of reproducing traditions as the guiding principles of the new nation state.
2.3.1 Identifying the Related Social Divisions
The related social divisions in the intersectionality approach are class, gender, sexuality and age.
2.3.1.1 Class
Arab nationalists’ elite are a class of Arab petty bourgeoisie.38 Kevorkian presents the argument of postcolonial theorists who depict the nationalism discourse as a European discourse of domination. Paradoxically, third world nationalism reflects the values of colonial powers despite its ostensible resistance to colonialism.39 According to Kevorkian: “This conceptualizing of nationalism replicates the larger world order, destroys the creative potential of alternative discourses, and undermines if not diminishes the alternative imagining of the nation”.40
Recognising class within Arab nationalism becomes important because respectability and the strict regulation of sexuality were major attributes of the bourgeoisie class, since these attributes were considered as tools to preserve the social order.41 The bourgeoisie helped to spread the strict regulation of sexuality to the lower classes. This was because they established commerce and industry, and an elevated level of morality was a condition for honest trade and required in their workers.42
2.3.1.2 Gender
Abu Odeh has argued that “the discourse on gender and the discourse on virginity in Arab culture crisscross/overlap so closely that they are hardly distinguishable”.43 As explained in Chapter Two, honour in honour-based cultures has a crucial impact on
38 Samir Amin, The Arab Nation: Nationalism and Class Struggle (London: Zed Press, 1978) 57-58. 39 Helfont argues that post-colonial nationalism labelled itself as an anti-imperial movement. For more details see Samuel Helfont, “Post-Colonial State and the Struggle for Identity in the Middle East since World War Two” 23October 2015 Butcher History Institute
In addition to the physical purpose of the hymen as a sign of sexual purity and virginity, the hymen defines the boundaries of females’ bodies and distinguishes them from males’ bodies. Moreover, women’s virginity should be proved by showing an elevated level of sexual chastity in daily life practice. This means that the hymen plays a significant role in identifying women’s adherence to the honour-based code of ethics.45 As explained in Chapter Two, Abu Odeh believes that the hymen has social functions beyond its physical function. That is, in honour-based cultures a woman’s whole body is “hymenized” to produce a body called female, and women’s social space is “hymenized” to create a form of “social hymen”.46
Arab femaleness is associated with the hymen. That is, virginity and sexual purity constitute the important bond that identifies an Arab woman’s identity and her belonging to society. Any woman who steps outside these borders will be alienated from her society and can be a subject to honour crimes.47 In these societies, women resort to early marriages in order to free themselves from the burden of the physical sign of honour, the hymen. However, they continue living under the umbrella of bodily and social virginity for the rest of their lives.48
It was also discussed in Chapter Two that Arab men reflect their gender identity through policing the expressions of women’s virginity which are physical, bodily and social virginity. If a man could not penalize his female relative for breaching the virginity rules, he would lose his gender identity as an Arab man. To police women’s sexual behaviour, Arab men build walls to isolate their related females from social life. Simultaneously, Arab men must prove their masculinity through sneaking over “others’ walls”. In other words, not only is men’s sexual behaviour not monitored, but their
44 Ibid. 45 Ibid. 46 Ibid. 47 Ibid. 48 Ibid, 13 162 involvement in sexual activities is also required as a method of practising gender identity.49
2.3.1.3 Age
Young women are the category under the most constant social surveillance since they carry the burden of virginity, and they must prove it all the time to protect their belonging to and affiliation with their society.50
2.3.1.4 Sexuality
Heterosexual marriage and the institution of the family are the nursery of post-colonial state nationalism projects, including the Jordanian state project.51 Moreover, it was discussed in Chapter Four that families are the main institutions which can fill the gap in the absence of state institutions.52
2.3.1.5 The Ideology of the Post-Colonial Jordanian State Nationalism Project
As discussed in Chapter Four, an identity struggle was evident in this post-colonial state nationalism project. Accordingly, protecting the national identity was essential. Nationalism was the main tool to maintain respectability and spread it among all classes of the society (since nationalism is cross-class).53 That is, even though it maintained the social and economic hierarchy, its new ideology targeted everyone, regardless of his/her class. Therefore, every individual was supposed to have equal status with regard to respectability. Breaching respectability rules was severely punished within the nationalism project, since breaching the strict regulation of sexuality was considered abnormal and condemned behaviour. Moreover, any individual who dared to break
49 Suad Joseph, Gender and Family in Arab World (London: Merip, 1994) 195-199. 50 Cheryl Rubenberg, Palestinian Women: Patriarchy and Resistance in the West Bank (Colorado: Lynne Rinner Publishers, 2001) 13. 51 Abdo, above n 4, 23. 52 Helfont, above n 39. 53 Socialist-based nationalism also incorporated respectability. It aimed at combating the patriarchal family structure and establishing families based on equality within the limits of respectability. In this context, socialists rejected sexual liberties and they explicitly condemned adultery. Moreover, socialism maintained the distinction between masculine and feminine. In other words, socialism enhanced the idea that family is the core of any social structure. Therefore, it should be protected by combating any form of sexual deviance that may jeopardize its existence. For more information see Mosse, above n 41, 185. 163 these strict rules was ejected from the society and put under a severe state of isolation; s/he was viewed as an outsider.54
The social construction of gender represents the rules of respectability. This traditional social construction of gender was present in the legislative process and policy making behind the 1960 Code. At the same time, striking a balance between tradition and modernity was a cornerstone of legal reform in the nation states of the post-colonial era. The legislative process was based on transplanting secular European laws to the Arab world. However, religious force was used to legitimize these statutes by also maintaining Islamic shari’a law with traditions as formal sources of legislation (as discussed earlier in this chapter).55 Anthias states:
Customary and religious norms and legislations, which usually construct women as primarily biological reproducers, will often be incorporated and reinforced by state legislation, although contradiction can exist also between state and religious legislation.56
Another example of the Jordanian nationalism project’s attempt to strike a balance between tradition and modernity is the Jordanian position concerning human rights treaties. The Jordanian state strove for integration into the international community without jeopardizing its national identity. Accordingly, the newly established state attempted to join international human rights treaties; however, it excluded the legal effect of some provisions through the reservation system. Cultural relativism was always invoked in the cases of reservation.57
2.3.2 The Concrete Social Relations within the Ideology of the Jordanian State Project: The Intersection of the Related Social Divisions
Mosse argues that modern nationalism is concerned with controlling sexual behaviour.58 However, the particular ramifications of the intersection of gender relations with other social divisions vary, depending on the priorities of each nationalism project. Generally, according to the nationalism projects, sexual deviance is linked to a secret
54 Ibid, 187. 55 Floya Anthias and Nira Yuval-Davis, “Introduction” in Nira Yuval-Davis and Floya Anthias (eds), Woman- Nation- State (London: Macmillan Press, 1989) 10. 56 Ibid. 57 Fraz Anjum, “Human Rights, Cultural Relativism and Islam” (2013) 50(2) J.R.S.P 160, 169-172. 58 George L. Mosse, “Nationalism and Sexuality in Nineteenth- Century Europe” (1983) Culture and Society 75, 75. 164 conspiracy against the nation.59 This perceived connection became more important in the context of a post-colonial nationalism project that faced an identity struggle.
Therefore, women’s loyalty to their nation was a critical component of protecting the national identity. In other words, honour’s original purpose, which requires a woman to show her faithfulness to her family and society constantly, was still operative within the project. Accordingly, the bourgeoisie Jordanian nationalists followed the approach of spreading their understanding of the traditional construction of gender to all classes by codifying the traditional rules. Codifying them resulted from the fact that Arab nationalism, including Jordanian nationalism, was not concerned with pursuing genuine social development.60 Thus, perpetuating social violence by preserving these rules was a mechanism to protect the social order. This social order is based on women’s loyalty to their nation because they are considered to carry the “burden of representation” and to be “symbolic bearers” of the collective identity.61 Considering women in this way enhanced the belief that women were the bearers of the collective honour.62 That is, they embodied the line which signified the “collective boundaries” by their “proper” behaviour, and their proper clothing.63 That order is paradoxical since women were pushed to the domestic sphere; however, they determined the boundaries of the public sphere which they were outside.
Based on this discussion, the connection between the social construction of gender and the Jordanian state nationalism project can take several forms. First, females are the biological reproducers of members of ethnic collectivities. Modern nationalism, including Jordanian nationalism, is concerned with enhancing the ideology of motherhood and elevating the value of heterosexual families.64 In nationalism projects, women are viewed as tools for the reproduction of nations. To protect the purity of the nation, other racial groups within the nation state are discouraged from reproducing by controlling their reproductive capacity. Secondly, females are the reproducers of the
59 Ibid, 81. 60 Helfont, above n 39. 61 Davis, above n 13, 18. 62 Women carry the burden of representation in different nationalism projects. For instance, different mottes were adopted for both boys and girls within Hitler’s youth movement. The motto of the girls was: “Be faithful, be pure, be German.” For boys, the motto was: “Live faithfully, fight bravely, die laughing.” In other words, girls must remain passive and they had to become the national symbol by preserving the honour of the nation. See Ibid, 17-18. 63 Ibid. 64 Ibid, 23. 165 boundaries of the ethnic/national group. Not only is a woman’s reproduction capacity controlled, but the proper method of reproduction is also controlled. This defines the boundaries of the symbolic identity of their nation. For instance, legal marriage is the condition needed to be met for children to officially belong to the nation. To protect the boundary of the nation, these legal marriages are regulated by religions and traditions which delineate who can marry whom. Finally, females are the key players in the transmission of societal values, passing them on to the next generation of the nation, as well as being the primary means of reproduction for the collectivity.65
The burden of performing these tasks is placed on the shoulders of the young women of the nation. Thus, there is a relationship between honour-based violence and the age of victims. As discussed, the main provisions for sexual crimes in the Penal Code No. (16) of 1960 show an emphasis on specific age categories. This is due to the essentiality of honour as a sign of young women’s loyalty to their nation. If a young woman fails to reflect her loyalty by infringing the rules of the honour code, she is no longer eligible to bear her socially designed responsibilities as a mother and a national symbol. Thus, unleashing honour violence is regarded as a necessity to eradicate the rebellious female from the social fabric.
Examining the concrete social relations that result from the interaction of specific social divisions produces two insights. First, the concrete social relation reflects the state of double oppression that women have to live under because of their gender and age. Secondly, they explain the reason why honour’s traditional role as a sign of loyalty prevailed in the provisions on sexual crimes. As previously noted, honour had a new innovative role in the Jordanian post-colonial nationalism project. The Jordanian legislature faced the dilemma of maintaining its own cultural heritage and creating a legislative process based on human rights. Gender relations were a tool to keep that balance.66 Therefore, some rules of the social construction of gender were codified in a way that strikes a balance between tradition and modernity.67 For instance, Chapter Two of this thesis discussed the fact that honour killing was regulated in Article (340) of the
65 Anthias and Davis, above n 55, 7-10. 66 Luna Sa’deh, “Tawsiyat Mahlya Li Mokfhat Al-Onof Deda Al-Mar’a Fi Al-Dafa Al-Ghrbeya w Qta’ Gaza” (Taqreer Maktab Al-Mafwad Al-Sami La Hokok Al-Ensan, 2009) 22. [Trans: Luna Sa’deh, “Local Recommendations to Combat Violence against Women in the West Bank and the Gaza Strip” (A Report of the United Nations Human Rights Office of the High Commissioner, 2009) 22]. 67 Abu Odeh, above n 5, 18. 166
Penal Code, and that honour killing had some attributes of the crime of passion, with pure traditional honour no longer existing. However, women’s role as the “symbolic bearers” of the national identity and the boundary makers of the newly established state elevated the value of women’s honour as a sign of loyalty. In other words, the importance of the identity struggle in this post-colonial state nationalism project,68 explains the necessity of unleashing social violence to control the gender space and, therefore, explains why traces of the traditional concept of honour as a sign of loyalty are strongly present in the provisions on sexual crimes. Thus, Article (340) can be seen as the progressive exception not the rule.
3. Honour Violence in the Palestinian/Israeli Conflict Nationalism Projects (The Palestinian Liberation Organization Nationalism Project/The Israeli Zionism Nationalism Project)
In addition to studying the historical impacts of the Jordanian nationalism project that are still affecting the Palestinian legal environment through the Penal Code No. (16) of 1960, it is also necessary to consider the impact of the current nationalism projects. The Palestinian case is unprecedented since there are two Palestinian nationalism projects. The first is the project of the Palestinian Liberation Organization (PLO) and the second, that of Palestinian state nationalism which was constituted after the ratification of the Oslo Accord in 1993. It is necessary to differentiate between the two in order to examine the assertion that the institutionalized state form of nationalism gave less importance to women’s emancipation, while the national liberation project was more concerned with the women’s cause due to the increase in fraternal feelings between the two gender groups during the times of unrest. This thesis argues that Palestinian women’s emancipation is caught up between the projects of the PLO and the Palestinian Authority (PA), since the establishment of the PA did not repeal the existence of the PLO. These two institutions continue to coexist.69 It is also valuable to study the impact of the Israeli project since it adds another important dimension to this analysis which is the dimension of ethnicity.
It is also argued in this thesis that the two Palestinian nationalism projects have different agendas regarding women’s liberation, but the value of honour as a sign of
68 Helfont, above n 39. 69 Abdo, above n 4, 22. 167
loyalty is the common ground that the two different visions share. It is true that the value of honour within the PLO is fluctuating, but it continues to be present.
The outline of this section is different from the outline that was followed in the previous one. That is, the previous section started by identifying the shortcomings of the sexual crimes’ provisions of the Penal Code No. (16) of 1960. Then the implications of the problem were highlighted through elucidating the pillars of the punitive policy. Finally, light was shed on the formation process of sexual crimes through the intersectionality approach. The outline of this section is reversed. This section starts with a discussion of the intersectionality of social divisions within the PLO. It then considers the impact of the Israeli nationalism project on the process of honour’s evolution as a sign of loyalty. Based on a discussion of the PLO/Israeli conflict nationalism projects, the vision of the PA concerning women’s emancipation is discussed in the following section. Starting with the process of law formation helps identify the shortcomings of the sexual crimes’ provisions in the draft of the Palestinian Penal Code of 2011.
3.1 The Palestinian Liberation Organization Nationalism Project
The connection between women’s emancipation and the liberation movement tends to be ignored by feminist literature. Most studies concentrate on women’s status in liberated nations, without paying much attention to women’s status within the liberation movement itself.70 In this sense, the Palestinian uprisings intifadas represent a rich platform for studying the relationship between feminism and national liberation. To understand the impacts of the Palestinian uprisings on the law formation processes, it is essential to use the intersectionality approach with its two levels of analysis.
3.1.1 The Social Divisions of the Intersection Process
The related social divisions in the intersectionality process are class, gender, religious background and sexuality. These divisions intersect within the goals of the PLO nationalism project.
70 Ibid, 19-20. 168
3.1.1.1 Class
When studying class as an important social division in the intersectionality process, it is essential to highlight the class of the Palestinian nationalists since their class plays a crucial role in the process. The PLO was established in 1964 in the diaspora. The newly established movement was a gathering of bourgeois and petty bourgeois members. Accordingly, the organization has been described as an institution which is bourgeois in its making.71 Amin argues that:
The Palestinian Liberation Organization brought together in its bureaucratic structure those bourgeois and petty bourgeois elements which had long been passed by history and which had already betrayed the liberation struggle of their people during the 1936 to 1939 revolution.72
This institution managed to become the sole legitimate representative of Palestinians all around the world. The bourgeois perception of respectability was perpetuated through nationalism. Thus, the PLO, since its constitution, has paved the way for immortalizing the traditional construction of gender. That is, the PLO resembled other institutions of anti-colonial nationalism in terms of defining gender relations and roles in general and defining gender roles in relation to the nationalism project in particular. Its main objective was to keep the society immune from Western contamination.73 Accordingly, Palestinian nationalism was described as masculine. In other words, that structure of nationalism produced a new form of masculinity: “nationalist masculinity”. Nationalists promoted the perception that this masculinity was temporal, was based on necessity, and had no direct relationship to traditions.74
It is important to identify the social segments which were addressed by the nationalism project. Nationalists attempted to form a culture of resistance.75 They also attempted to create a Palestinian identity that was connected to the lost land.76 Thus, peasants were
71 Joseph Massad, “Conceiving the Masculine: Gender and Palestinian Nationalism” (1995) 49(3) Middle East Journal 467, 479. 72 Amin, above n 38, 57. 73 Massad, above n 71, 470. 74 Ibid, 467. 75 Tina Sherwell, “Palestinian Costume, the Intifada and Gendering of Nationalist Discourse” (1996) 5(3) Journal of Gender Studies 293, 297. 76 Ibid, 299. 169 used as symbol of Palestinian nationalism.77 For this purpose, peasant society, as a national signifier, was always portrayed as a “utopian society” without complex hierarchies.78
3.1.1.2 Gender
Gender relations constitute the basis that defines femininity and masculinity and produces national collectivities.79 Honour, which is a pillar of Arab gender relations and the signifier of Arab masculinity, was present in Palestinian nationalism. Women and their sexual chastity were the main manifestations of loyalty to the national cause of resistance against the prolonged occupation. Accordingly, killing women who breached the honour code was depicted as a national duty that helped to eradicate any form of betrayal.80 Additionally, sexual abuses were always conceived as crimes against national security rather than simple criminal offences.81 Accordingly, honour was a barrier that impeded women’s full participation in the national struggle against occupation.82
As explained in Chapter Four, the importance of the honour concept was elevated within the Palestinian nationalism project because honour was a vital method for affirming men’s masculine authority, especially after the significant loss of land. The Palestinians’ expulsion from their hometowns, and their transformation from powerful land owners to groups of undesired refugees living in inadequate refugee camps caused a major crisis for Palestinian masculinity. Therefore, honour was the only method to reclaim this lost authority.83 The national resistance against occupation was also always portrayed and perceived as a process aimed at restoring the honour of Palestine, which was depicted by nationalists as a peasant woman who was sexually abused by occupation.84
77 Ibid, 293. 78 Ibid, 299. 79 Davis, above n 13, 9. 80 Maria Holt, “Palestinian Women, Violence, and the Peace Process” (2003) 13(2 and 3) Development in Practice 109, 114. 81 Kevorkian, above n 1, 16. 82 Holt, above n 80, 114. 83 Ibid, 115-116. 84 Sherwell, above n 75, 300. 170
3.1.1.3 Religious Background
The Islamic resistance movement Hamas attempted to take over Palestinian nationalism. The rise of the Islamic movement was an outcome of the Palestinian’s severe state of despair because of poverty, isolation, and the failure of the Palestinian nationalism movement represented by Fatah, to resolve the Palestinian-Israeli conflict.85
This attempt had a pivotal impact on the prevalence of honour violence. Hamas had embarked on a campaign of imposing the veil on women, and Fatah was trying to support this by convincing women to respond to Hamas’s order to avoid widening the gap inside the nationalism movement.86 This compulsory campaign enhanced the concept of honour and perpetuated men’s authority over women. With this step, women’s identity and their freedom of choice were confiscated, while men regained more self-esteem and self-respect. Holt argues that imposing veils was not related to religion but was connected to the struggle for power and dignity.87 However, Islamists chose religion to regain power because it is difficult to oppose religious rules. Davis also argues:
For them and other religious leaders the ability of women to control their own bodies is a direct threat to their authority and many women would hesitate to take any act which would be interpreted as betrayal of sacred religious and customary laws.88
3.1.1.4 Age
Young women have tended to play a crucial role in the PLO nationalism project. These women carried heavy burdens during the conflict since they are the producers of the nation and its boundary makers.
85 Holt, above n 80, 123. See also Abdo, above n 4, 31. 86 Abdo, Ibid, 33. In this regard, Massad argues that “in the more recent past, Palestinian women’s freedom of movement, dress and behaviour became highly restricted in Gaza as a result of the collaboration between the secular and religious stands of Palestinian nationalism. The secular nationalists assured women that this was a temporary arrangement, and that after liberation, women, too, would be free. This was a tactical mistake that the secular leadership later declaredly regretted”. For more information see Massad, above n 71, 480 87 Holt, above n 80, 124. 88 Davis, above n 13, 15. 171
3.1.1.5 Sexuality
Heterosexual families are crucial to the ideology of the PLO. For instance, the Palestinian intifada is described as a pregnancy. The enemy’s attempt to combat it is described as the attempt to abort it. Palestinian independence is viewed as birth after the intifada’s pregnancy. It is also analogized to a wedding that crowns the heterosexual relationship. In other words, the intifada represents both a birth and a wedding. The wedding is the beginning of the new “reproductive cycle” of the future generation of Palestinians, and the marriage takes place between the Palestinian male nationalists and the Palestinian motherland. In this sense, Yasir Arafat is described as “the symbolic father of the nation”. The analogy described above reflects the importance of the heterosexual family which is placed at the centre of the liberation nationalism project.89
3.1.1.6 The Ideology of the PLO Nationalism Project
The PLO was founded in 1964, and later in 1965 it formed the General Union of Palestinian Women within itself. Females were incorporated into the resistance process after some PLO leaders campaigned to challenge the notion of honour, and its impact as an impediment to women’s complete participation in the Palestinian resistance against occupation. These leaders raised the motto of land before honour or Al-ard qabal al- ird.90 This explains why some scholars, such as Abdo, argue that women tend to acquire more rights within liberation movement nationalism than they do within state nationalism projects.91
This progressive step represented a tangible change in the lives of Palestinian women. However, it was not comprehensive.92 History is replete with examples where revolutions have been founded on the “nation first, women after” strategy.93 This means that the real challenge lies in the fact that national liberation is not concerned with gender or class emancipation.94 Women’s partial assimilation into the resistance process did not change the fact that the resistance was masculine in nature. Therefore, women continued to face the double challenge of the Palestinian social and nationalist’s
89 Massad, above n 71, 477. 90 Holt, above n 80, 121. 91 Abdo, above n 4, 22. 92 Holt, above n 80, 117. 93 Ibid, 120. 94 Abdo, above n 4, 26. 172 patriarchy on one hand, and the Israeli occupation on the other.95 In other words, Palestinian women’s participation in the armed conflict as combatants did not insulate them from the challenges of the patriarchal social structure. Moreover, the growth of fundamentalism as a form of resistance against occupation aggravated the situation of women.96 Social traditions remained the core of the Palestinian national identity and Palestinian national resistance was mainly masculine.
Accordingly, despite the growth of feminist consciousness within PLO nationalism, whereby some women could take part in the military conflict and the political process, masculine nationalism tended to entrench women’s traditional role through promoting the classic role of motherhood as the primary one that women should play in the armed conflict.97 This means that even in the liberation movement form of nationalism, women are again the signifiers of the social order, which they are outside. For instance, in liberation nationalism rhetoric, homeland is perceived as a woman/mother who should be defended from enemies.98 Palestinian nationalists actively adopted the motherhood symbol after their expulsion from their homeland.99 Through the mother-nation relationship, not only were women responsible for reproducing the nation and ensuring the survival of the cultural and national identity, but mothers also played the role of the state by providing a patriotic form of education to their children.100
95 Holt, above n 80, 111. 96 Ibid, 120-121. 97 Ibid, 118. 98 Davis, above n 13, 9. Davis gives many examples of the importance of women’s figures and their iconic symbolism of the collectivity. “For instance, it was referred to women as the mothers Russia, the mothers of Ireland and the mothers of India. Moreover, in the French revolution, its symbol was La Patrie, a figure of a woman giving birth to a baby. In Cyprus, a crying woman refugee on roadside posters was the embodiment of the pain and anger of the Greek Cypriote collectivity after the Turkish invasion”. For more information see Ibid, 18. In the same context Beth Baron argues that “Egyptian nationalists appropriated the nation of family honour, which was familiar and widespread, and elevated it to the national plane to create a sense of national honour. They accomplished this by rendering the nation (Misr) as a woman and the national community (umma) as a family in visual and literary images”. Beth Baron, “Women, Honour, and the State: Evidence from Egypt” (2006) 42(1) Middle Eastern Studies 1, 2. 99 Abdo illustrates an example of how poets of the Palestinian nationalism project perpetuated the image of motherhood as a major method of encouraging women’s participation in the project. In this regard, Abdo highlights the famous poem of Mahmoud Darwish, the prominent Palestinian nationalist and poet. The major theme in the poem is expressed in the following words: “Write down I am an Arab, my identity is 50,000 I have eight children and the ninth is due next summer”. Abdo argues that “neither Darweish nor any Palestinian male leader has given a thought to the fact that the seven or nine children are raised, maintained and reproduced by women alone”. Moreover, Abdo highlights some Palestinian women’s reactions to this analysis. For instance, these women stated that “we never read Darwish this way before”. Other women stated that “we never knew that our literature and the best written culture had excluded us”. Abdo, above n 4, 28. 100 Ibid, 26. 173
Thus, Palestinian women’s major participation in the nationalism movement comes through their motherhood role.101 In other words, women’s gender identity is defined through their motherhood role.102 In this context, the Palestinian intifada produced the image of the “heroic mother”.103 The heroine symbol of mother is known as the mother of the martyr Um al Shaheed.104 This symbol was glorified through its integration into the Palestinian nationalist ideology. That is because the armed conflict was based on actual sacrifices and the future willingness to sacrifice. This willingness of future sacrifice was consolidated through elevating the image of the mothers of martyrs.105
Another Palestinian motherhood image was created later. This was the image of the “mother of a political female prisoner” Um al-Asirah. Abdo argues that this new feminine symbol, which glorifies daughters in prisons, implies women’s ambitions to challenge the traditional notion of honour and the social taboos regarding sex and rape.106 However, this image of motherhood had a contradictory impact, since it entrenched the existing social construction of gender, rendering the cause of women within the Palestinian liberation movement a marginal matter.107
The Palestinian nationalists’ attempts to incorporate the symbol of motherhood into the national ideology is implicit and can be illustrated through reviewing metaphor and rhetoric in the PLO’s primary documents, the Palestinian National Charter and the Palestinian Nationalist Charter. These documents represent the constitution of the PLO. They define the Palestinian political goals, the Palestinian rights, and the essence of “Palestinianness”. In other words, they are the infrastructure for the future generations of Palestinian nationalists.108 An analysis of these documents indicates that the outcome of integrating the motherhood symbol into them is nationalizing masculinity and emphasizing the importance of the strategy of “a nation first, women after”.109 This claim is supported with two examples:
101 Ibid, 25. 102 Holt, above n 80, 117. 103 Ibid, 122. 104 Ibid. 105 Abdo, above n 4, 27. 106 Ibid, 30. 107 Holt, above n 80, 122. 108 Massad, above n 71, 470. 109 Ibid, 468-469. In this regard, Massad argues that in nationalism projects, nationalists attempted to combine between the European and the existing gender rules. This could not lead to syncretism. In the case where nationalists transplanted European concepts, the new modern rules were traditionalized to 174
First, the introduction of the Palestinian Nationalist Charter portrays Palestine as a mother and Palestinians as her children. It also depicts the Zionist conquest as a masculine act of sexual abuse that took place by raping the Palestinian land.110 On the other hand, the early Zionists conceived their role as one of fertilizing the virgin land. That is, according to Zionists, Palestine was a mother-land to which all Jews should return. This virgin land needed to be fertilized.111
Secondly, Article (4) of the Palestinian National Charter defines Palestinian identity as “a genuine, inherent and eternal trait. It is transmitted from fathers to sons”. It also states: “Palestinians are those Arab citizens who used to reside in Palestine until 1947 and everyone who was born to an Arab Palestinian father after this date, whether inside Palestine or outside it”. Article (4) reflects that the definition of Palestinian identity is variable and reliant on the historical context. That is, until the declaration of the UN Partition Plan in 1947, “Palestinianness” was connected to the bond with the land. So, Palestinians were defined as those who lived in Palestine: the motherland. However, after 1947, “Palestinianness” had another definition that no longer related to the bond with the land. It was connected to physiological and metaphorical paternity. Accordingly, “Palestinianness” is acquired by being born to a Palestinian father whose “Palestinianness” is intrinsic and was acquired by residing in the mother-land before its rape. This transformation has its own consequences, best expressed by Massad who states that:
Revealing the importance of eugenics in nationalist logic, this definition carries itself to future generations, whereby it is the sons of these fathers who will continue the reproduction of the Palestinian people. In sum, while the land as mother was responsible for the reproduction of Palestinians until 1947, maintain traditions as the core of the national identity. The essentiality of traditionalizing the modern rules stems from the fact that gender relations are a cornerstone in constructing the nation. In the same context, Massad states that “establishing a new model anti-colonial masculinity was a much more complicated endeavour that its colonial counterpart. In adapting European nationalist concept to local conditions, anti-colonial nationalists were faced with the task of defending not only the roles of men and women in the nationalist project, but also what non- European nationalist masculinity would look like and what kind of performances would guarantee it. In this vein, Palestinian nationalism like other anti- colonial nationalisms, set itself similar task”. Ibid, 477. 110 Ibid, 471. 111 Ibid. Mosse argues that the inception of using the metaphors of sexual violence was founded in European nationalism. According to him, European nationalism had a unique bond with male society and the concept of respectability that justify the dominance of men over women. Zionist ideology borrowed this approach from European nationalism. For instance, the diaspora was feminine in nature. Additionally, this feminine diaspora was replaced with the new era of masculine attempts to fertilize the virgin/motherland. Finally, the same approach was used by the Orientalists who viewed the Orient as a rich and fertile female. George Mosse, Nationalism and Sexuality, Respectability and Abnormal Sexuality in Modern Europe (New York: Howard Fertig, 1985) 67. 175 the rape disqualified her from this role. It is now fathers who reproduce the nation. Territory was replaced by paternity. The disqualification of the land as mother in her national reproductive role, in the charter, does not deny that the land, as mother, can produce children, but rather that, since the rape it can no longer be relied upon to reproduce legitimate Palestinian children.112
Nationalizing masculinity in the ideology of the Palestinian nationalist movement was also embodied in the nationalists’ speeches. Several examples support this claim. First, in his 1974 speech that addressed the UN General Assembly, PLO chairman Yasir Arafat described the Zionists’ take-over of the Palestinian land as rape. Arafat also described combating Zionism as the attempt to regain and defend the profaned honour of the Palestinian nation.113 Secondly, in his 1974 UN speech, Yasir Arafat described the Palestinians as the custodians of the homeland. Moreover, in the 1988 Declaration of Independence, Palestinian women were described as the trustees of the Palestinians’ existence.114 Thirdly, Communique No. 29 described the 1988 Declaration of Independence as the wedding of Palestine.115
Fourthly, in some communiques, women were listed as a distinct occupational group. In this interpretation, the other occupational groups include men only. Women’s roles as mothers cannot constitute a profession. In other communiques, women were mentioned together with the vulnerable segments of the society, mainly children and old people.116 The value of Palestinian women’s bodies is only important in the reproductive context. That is, Palestinian women were mentioned because of their reproductive capacities, especially when they had miscarried or when their sons were imprisoned.117 In this regard, it is important to note that Palestinian women were encouraged to have more children. As a result, some Palestinian women believed that they should have one son to fight and get killed, one son to go to prison, another to seek work overseas in order to give the family the financial support, as well as one more to care for his parents in their old age.118 Yasser Arafat is also reported to have said: “The Palestinian woman who
112 Massad, above n 71, 472. 113 Ibid, 473. 114 Ibid, 474. 115 Ibid, 474. 116 Ibid, 475. 117 Ibid. 118 Davis, above n 13, 16. 176 bears yet another Palestinian every ten months is a biological time bomb threatening to blow up Israel from within”.119
In summary, women’s participation in Palestinian nationalism urged the secular leaders to initiate some changes inside the nationalist movement toward gender inclusiveness. However, nationalism is ultimately masculine in nature. Therefore, in addition to women’s innovative role of struggling side-by-side with men, they are expected to continue to play their traditional roles as mothers and guardians of Palestinian lives and the survival of the nation.120 Kevorkian describes the burdens that Palestinian women are carrying in the nationalist struggle as “the ‘weaponization of women’s bodies’ referring to the use of women’s bodies to fight, cope, revolt, protect, secure and defend”.121 So although women’s roles as mothers and wives restricts them primarily to the domestic sphere, the weaponization of their bodies translates into them being viewed not only as vessels of their family’s honour but also of national pride, thus dictating that their moral conduct becomes a matter of public concern. It is, however, important to note that some women have had and do have an impact on the national project, acting within the nationalist vision rather than solely being acted upon by it.
3.1.2 The Concrete Social Relations Within PLO Ideology: The Intersection of the Related Social Divisions
“Masculinity is neither natural nor given. Unlike femininity, masculinity is a social construct”.122 It was noted in Chapter Two that Arab masculinity is associated with specific moral values, mainly courage and generosity. It is seen as being acquired through practising strict vigilance over women’s behaviour and defending honour from contamination. In other words, it is deeply related to men’s responsibility to defend the existing social construction of gender. Palestinian masculinity was gravely threatened by the Israeli occupation which limited the realms for practising masculine virtues. Accordingly, defending honour through constant vigilance over women’s behaviour
119 Ibid. 120 Massad, above n 71, 481-482. 121 Kevorkian, above n 1, 113. 122 Julie Peteet, “Male Gender and Rituals of Residence in the Palestinian Intifada: A Cultural Politics of Violence” (1994) 21(1) American Ethnologist 31, 34. 177 was almost the only remaining realm left for Palestinian men to practise their masculinity.123
The value of the social construction of gender was enhanced by the PLO which incorporated it into its ideology. Under the PLO’s masculine nationalism, women were expected to play new roles. That is, in addition to the roles they had to play under the Jordanian nationalism project, they had to bear extra burdens within liberation movement nationalism.124 First, they had to play the role of the biological reproducers of members of ethnic collectivities. In nationalism projects, women’s fertility and sexuality are considered to be a political issue. A nationalism project that wages a demographic war through the reproduction process leaves women with no control over their bodies.125 Thus, population policies and women’s reproductive rights are correlated within the nationalism project, in its objectives and visions regarding the size of the nation.126 Secondly, women had to play the role of reproducers of the boundaries of the ethnic/national group. Thirdly, they were expected to participate in the ideological reproduction of the collectivity and to transmit its culture. Fourthly, they signified ethnic/national differences. Within nationalism projects, women symbolize the nation and they are analogized to the nation. That is, the nation is portrayed as a loved woman in danger or as a mother who has lost her sons, while wars against colonialism are described as wars of defending honour. Finally, women had to participate in national, economic, political and military struggles. They took an active role in every facet of the Intifada’s struggle. At the time of the uprising women put themselves in real danger supporting their men and youth on the front line and in some cases even attempting to shield them from arrest. This made them highly visible in the public sphere.127
The active roles that Palestinian women played in the nationalist struggle did not contribute to their emancipation. Contrary to their expectations, they were deeply enmeshed in patriarchal control that diminished their expectation of liberation and left them without prospects. The essential nature of women’s roles in the nationalism struggle, especially their roles as mothers and symbols of the nation, made the old
123 Ibid. 124 Anthias and Davis, above n 55, 7-10 125 Sherwell, above n 75, 301. 126 Davis, above n 13, 16. 127 Sherwell, above n 75, 301. 178 purpose of honour, which reflects loyalty to the collective society, crucial. In the Jordanian state nationalist project, honour had two functions: the modern function of striking a balance between tradition and modernity; and the ancient function of reflecting loyalty. However, in liberation movement nationalism, honour has only one purpose: the ancient one. Women are punished severely if they infringe the existing social construction of gender, since this breach is a sign of disloyalty and demonstrates unsuitability for playing the role of mother. Consequently, cases of sexual abuse were treated as matters of national security rather than criminal offences.128
Increasing the value of honour as a sign of loyalty in an unstable society raises the burden of expectations imposed on women. A Palestinian woman states that:
A woman is expected to be a perfect mother for her children, an excellent traditional wife, expected to labour outside the house, to be active in a political organization, expected to be a progressive woman…. She is expected to be everything, and nothing should come in her way.129
Therefore, women found themselves facing a dual struggle: against the traditional gender construction; and against colonialism.130 In other words, women’s transferral from their struggle against social repression to the national struggle was not a fruitful mechanism to emancipate them.131
Examining the related social divisions indicates that women’s class and age had a vital role in the PLO’s masculine-based nationalism project. Palestinian women faced a state of triple oppression because of their class, gender and age. In this sense, Abdo argues that “nationalism can be doubly oppressive on both gender and on class bases”.132 The importance of the class factor in this process stems from the fact that most Palestinian nationalists belonged to the bourgeoisie who tended to impose their rules on the lower classes.133 The burden of reproducing the nation was not evenly spread among the
128 Kevorkian, above n 1, 16. 129 Abdo, above n 4, 32. 130 Ibid, 22. 131 Massad, above n 71, 476. Holt argues that women’s participation in the national struggle against colonialism commenced during the British Mandate era. Despite the fact that upper-class women’s struggle was charitable in nature, the Palestinian women of lower classes could take part in the military conflicts against the British. It is evident that women’s roles in the military conflict was unaware. However, this role helped them to become more visible in the public sphere. Women’s progress toward liberation from the yoke of patriarchy was supposed to continue within the PLO. However, the masculine- based nationalism and its ideology were considered a setback in the history of women’s struggle for emancipation. For more information see, Holt, above n 80, 116 132 Abdo, above n 4, 28. 133 Massad, above n 71, 478. 179 classes.134 That is, the nationalist calls to produce future generations are “class-laden”. Emphasis on the reproduction of children focuses on specific groups within Palestinian society, such as the peasants, working classes and Palestinian poor. This excludes intellectual middle and upper-class Palestinians which have long adopted the modern model of a small nuclear family. The role of reproducing the nation requires women to demonstrate an elevated level of sexual chastity to be eligible to practise motherhood, otherwise they will be subjected to severe sanctions. More women of lower classes were also present in armed conflicts. This required them to constantly prove loyalty through complying with the honour code. Finally, young women of lower classes are the most targeted group of women according to the ideology of the PLO and Hamas, since they belong to the age category with optimal fertility for practising the reproduction of the nation.135 This explains the deterioration of the status of Palestinian lower-class women who enjoyed more liberties compared to upper-class women before the initiations of the Jordanian state nationalism and the PLO nationalism projects.136
It is important to note that the PLO did not engage in tangible legislative activity. However, the concrete social relations of this stage of the struggle of liberation affected the legislative activity of the PA, since the PLO continues to coexist side-by-side with it. Based on this analysis, the fourth section of this chapter that discusses the Palestinian state project proves the claim that the partial privileges which women acquired under liberation movement nationalism were diminished by the political leaders of Palestinian state nationalism. These political leaders attempted to push back women participants in the resistance process to the private sphere after the armed conflict had ceased. Furthermore, the coexistence of the PLO and the PA helped the latter institution’s political leaders to perpetuate the PLO’s existing vision pertaining to honour-based violence. The outcome of this process was immortalizing honour’s old purpose as a manifestation of loyalty. Accordingly, analysing the provisions of sexual crimes in the Palestinian draft of the Penal Code shows that honour as a sign of loyalty has a prominent status.
134 Sherwell, above n 75, 301. 135 Peteet, above n 122, 43. 136 Nahla Abdo-Zubi, Women and Social Change in the Middle East: The Palestinian Case (Toronto: Canadian Scholar’s Press, 1987) 12. 180
3.2 Honour Violence in Jewish State Nationalism: The Dimension of Ethnicity
In addition to the intersection of the social divisions discussed above, the intersection of these divisions with ethnicity further complicates Palestinian women’s lives by elevating the value of honour as a sign of loyalty. Honour in armed conflict has an ethnic dimension, or what is called “the ethnic honour of the nation”.
In ethnic conflicts such as the Israeli/Palestinian conflict, honour plays a crucial social role, because women’s bodies are boundary makers. This explains why women are easy victims during and after war. Accordingly, some scholars, such as Handrahan, argue that gender and ethnicity are correlated. That is, in war time, ethnicity is preserved by means of keeping “gender identities”, and the prevalent sexual violence that takes place is a tool used to destroy the nation’s ethnic honour. In an ethnic war, ethnicity is patriarchal since national identity is represented by women’s bodies. Accordingly, women’s bodies constitute “a battleground over which opposing forces struggle”. On the other hand, women have no ethnic identity in these wars. Women are merely boundary-makers for the collective ethnic identity. This means that men can have children that belong to them ethnically by raping women who belong to another ethnic group.137
Thus, some feminists argue that gender identities have another dimension: that ethnicity is created and sustained through gender identities. This argument explains why the value of honour as a social bond and as a sign of loyalty is elevated during conflicts. This means that the relationships of ethnicity to gender and conflict are worthy of examination, because the gender analysis of ethnicity illustrates the essentiality of honour-based violence in maintaining a stable social order in war times.138 Mosse argues:
Nationalism together with bourgeois respectability played a crucial role in determining how men and women were perceived by modern society. Racism strengthens both the historical and the visual thrust of nationalism, it emphasized the stereotypes of superior and inferior races, while the distinctive history of each people was said to determine their superiority or inferiority for all time to come. Racism was a
137 Lori Handrahan, “Conflict, Gender, Ethnicity and Post-Conflict Reconstruction” (2004) 35(4) Special Issue and Gender and Security 429, 440-442. 138 Ibid, 442. 181 heightened nationalism: the differences between people were no longer perceived as chance variation, but as immutable, fixed in place.139
Palestinian women’s traditional roles within the PLO project was targeted by the Israeli settler colonialism, which aimed at conducting an extensive process of ethnic cleansing to eliminate the Palestinian ethnicity.140 These roles are the boundary-making of the nation and reproduction.
The role of women as boundary makers was targeted through the contamination of their sexual purity. Women’s sexual freedom is strictly monitored in peacetime. However, their sexual behaviour becomes more crucial during armed conflicts because sexual chastity is intentionally targeted by the enemy in order to destroy the ethnic honour of the nation. Thus, women have to face three-dimensional repression: by family, the nationalism project and the enemy.141
Rape is used as a weapon of war.142 Historically, Zionists were aware of the value of honour in the Palestinian context. Therefore, the weapon of honour was used against the Palestinians during the conflicts between 1947 and 1948 by raping women to expel locals from their homeland.143 Protecting honour impeded Palestinians from fighting against the Zionist’s aggression in 1948. It is believed that Palestinians’ main motive behind fleeing their villages and towns was the fear of their honour’s contamination by the Zionist soldiers.144 In other words, honour-based violence served the politics of identity group preservation/destruction. Moreover, the tribal heads were also authorized by the Israeli occupation to deal with crimes against women. Israeli authorities allowed them to issue death certificates using Jordanian health law to justify any suspicious practices committed against women.145
In modern times, the continual use of honour against Palestinian women is perpetuated by following the approach of downfall or Isqat. This refers to “the use of the politics of
139 Mosse, above n 41, 133. 140 Sherwell, above n 75, 297. 141 Handrahan, above n 137, 437. 142 It was pointed out in a debate at the NGO forum of the UN Conference on Human Rights in 1995 in Vienna, that Geneva Convention categorized rape as a crime against honour. This definition emphasizes on the importance of men’s honour instead of focusing on the act of human rights violation. Davis, above n 13, 22-23. 143 Holt, above n 80, 114-115. 144 Ibid, 115. 145 Kevorkian, above n 1, 66. In her field research, Kevorkian discovered a death certificate of a woman aged twenty-eight whom the tribal head claimed on the form had died from old age. Ibid. 182 sexuality as reflected in the violation of societal codes of women’s purity, honour, sexual abuses integrity and social respectability”.146 This is in addition to acts of physical violence directly aimed at undermining women’s honour, such as rape and sexual humiliation by Israeli forces.147
Women whose sexual purity has been profaned by the ethnic “other” will not be assimilated into the community again. In order to save the ethnicity’s honour from future damage, these women are urged to commit suicide. In other words, women’s lives have no value if they are stripped of their main role as boundary makers. On the other hand, refusing to commit suicide after being exposed to sexual assault by the enemy is a sign of having no sense of honour and loyalty.148 “This prompts the question of why this particular method of violence is usually used as a weapon of war. One possible answer is that it is believed that sexual violence against women is likely to destroy a nation’s culture”.149
The second role that might be targeted by the enemy was women’s motherhood of the nation. In a colonial-settler state, the multiplication of the “superior” settlers race often goes hand-in-hand with a means of controlling and limiting the reproduction capacity of the “inferior” native population. These means can even include mechanisms designed to annihilate the native population, such as the massive expulsion or population transfer in the Palestinian case.150 In most cases, however, the nation-state resorts to social, economic and political pressure to check the growth of the undesired population.151 The concept of honour was the major form of social pressure that the Israeli state exerted on Palestinians to control their demographic growth. In other words, young women’s sexual purity was targeted to impede them from playing their expected motherhood role. This means that the value of honour, as a manifestation of loyalty, increases. Additionally, the challenges that are placed on the shoulders of the young Palestinian women of lower classes, who are responsible for the demographic growth of the nation, grow exponentially.
146 Ibid, 15. 147 Abdo, above n 4, 23. 148 Ibid. 149 Holt, above n 80, 112. 150 Abdo, above n 4, 23. 151 Ibid, 23-24. 183
4. Palestinian State Nationalism
The PA was established in the Spring of 1994. The legitimacy of the new Palestinian autonomous entity emerged from the Oslo Accord or the “Declaration of Principles” which was signed and ratified by both Israelis and Palestinians in 1993.152
Signing the Oslo Accord was considered a setback for the Palestinian national struggle, especially since Palestinians had firmly refused autonomy-based settlement at Camp David in 1979. The Camp David negotiation had offered more rights to the Palestinians than were offered by the Oslo Accord.153 Thus, Arafat’s political step faced stiff internal opposition since the political settlement with Israel was conceived by many Palestinian nationalists as a major compromise of Palestinian values and a departure from the original goals of the Palestinian national liberation movement.154
Shafiq Al-Hout, the most prominent opponent of signing the accord within Fatah, stated that:
In format, this agreement is called a declaration of principles concerning arrangements for a transitional government of the autonomy. But it should have been a declaration of principles concerning the entire Palestinian cause, including all its aspects, followed by arrangements for the intermediate stage as part of a full detailed agreement between the two sides. When we read this agreement thoroughly we discover that there are no clear principles in this declaration of principles.155
Edward Sa’id also stated that:
It took four years for the Oslo peace process to disintegrate and for the shiny mask to come off, and now these accords are shown for what they are: not a peace treaty, rather a treaty to perpetuate Israeli control of the Palestinian lands through nice words.156
The division between the different fronts inside the Palestinian national movement regarding the peace agreement, and the fact that the establishment of the PA did not
152 Al-Jazeera Interactive, The Price of Oslo (31/8/2017)
The peace process paved the way for the Palestinians to start planning for self- governance freed from armed conflict which had lasted for decades.160 Establishing the Palestinian state again raised the issue of women’s emancipation, an issue which Palestinian women were asked to put aside for the sake of the national struggle.161 Generally, in the state-building process during a post-conflict era, gender is often perceived as a trivial matter by most political leaders.162 It is rarely considered, and women are encouraged to return to what is considered “normal”. This state of normality refers to the patriarchal order as it existed before the conflict, where women’s rights were constantly breached. Moreover, the international community’s definitions of “normal” are lenient toward violence against women in their own societies.163
157 Mamdoh Nofal, “Ishkaylet Al-Alaqa Baeen Al-Solta Al-Watanya Al-Filstinya w Monzamet Al- Tahreer w Sobol Hloha” (1995) 6(22) Majalat Al-Dirsat Al-Filstinya 1, 3. [Trans: Mamdoh Nofal, “The Problematic Relationship between the Palestinian Authority and the Palestinian Liberation Movement and its Solutions” (1995) 6(22) The Palestinian Studies Magazine 1, 3]. The main reasons for the state of disagreement between the PA and the PLO are: the conflict between the PA’s legal obligation to comply with the Oslo accord and the PLO’s obligation to fully liberate the Palestinian land. This is in addition to the difficulty of balancing the requirements of building the PA’s institutions and maintaining and strengthening the PLO institutions. Finally, the conflict was due to the difficulty of organizing coordination between the two entities. Ibid, 3-4. 158 Ibid, 9. 159 Ibid, 10. 160 Holt, above n 80, 109. 161 Ibid, 110. 162 Handrahan, above n 137, 440. 163 In the post-conflict era, violence theoretically stops. However, feminists’ studies show that in this era, violence against women escalates. That is, in post-conflict societies, women’s insecurity during war time is normalized after war comes to an end. In times of conflict, men are the major participants in the actual process of war to defend their land and women. This participation in war constitutes the “gender element of citizenship”. During the critical time of war, gender differences shrink and fraternity between the two gender groups prevails. However, maintaining this fraternity is impossible after the war comes to an end. In this regard, Handrahan states: “War tends to break down structures, and women gain, as an unintended consequence, freedom, responsibility and worth. This gender liberation appears short-lived, as the national patriarchy begins to reassert itself after the war and expects women to return to the way they were before the war. That is, to their subordinate positions”. In the post-conflict era women are pushed to 185
Understandably, women refuse to yield to either national or international standards of what is “normal”. These women who played key roles during a war are usually ignored in post-conflict development plans and decisions by both international and national male leaders. They are told to return to the private sphere and to practise their lives as citizens largely concerned with domestic life.164 Examination of the infrastructure of post-conflict reconstruction shows that no transition plan meets the basic requirements of gender mainstreaming.165
The impact of the intifada on the lives of the Palestinian women must be evaluated to see whether it helped women to be visible in the public sphere or whether it pushed them back to the private sphere.166 In this context, one may wonder what makes the Palestinian experience different from other women’s experiences in the national struggle? For instance, Algerian women, between 1950 and 1960 were totally pushed back to the private sphere after their country was liberated from the French occupation. However, Palestinian women refused to go back to the private sphere.167
One can argue that the Palestinian experience is unique in that the Israeli occupation is a prolonged one. Thus, women could not be fully pushed to the private sphere. However, as a result of the establishment of the PA, the women’s movement was caught between two dilemmas. The first is related to the unceasing national struggle and the continued existence of the PLO. Consequently, women still have the duty of reflecting an elevated level of loyalty as boundary makers of the nation. The honour bond is the only measurable method through which women can and must prove their loyalty to the collective society. The second dilemma was women’s position in the state-building process. The outcome was a combination of two negative impacts. That is, after the constitution of the Palestinian state nationalism project, the partial privileges which were granted to women within the liberation movement were curtailed. Simultaneously, the continuous state of resistance justified perpetuating the PLO’s ideology regarding honour as a manifestation of loyalty. In other words, women’s burdens as the bearers of the private sphere again as an attempt to normalize life after war. Additionally, women’s suffering increases since gender equality is a marginal matter in the post-conflict policies. Ibid, 429-442. See also Jeremy M. Wilson, “Reconstructing Internal Security in Post-Conflict Societies: The Challenge and Successfulness of Developing Democratic Police and Justice Institutions” (2011) 24(1) Security Journal 52, 55. 164 Handrahan, above n 137, 440. 165 Ibid. 166 Holt, above n 80, 128. 167 Ibid, 129. 186 the national honour were doubled because of the coexistence of the two nationalism projects.
Palestinian women were betrayed by their national leaders, with whom they had fought side-by- side.168 They were also betrayed by their women leaders,169 because of the drastic shortage of political and leadership skills needed to advance the women’s rights agenda.170 This analysis explains why the Palestinian draft of the Penal Code could not make progress in combating honour-based violence. It also explains why the Palestinian draft of the Constitution cannot be considered a means of women’s transition to a better era in terms of rights.
4.1 Insight into the Draft of the Future Palestinian Constitution
Enhancing the rule of law and legal reform are considered means of political and social change.171 The transformation from conflict to peace “or at least to something less than conflict”,172 requires taking gender issues into consideration in the process of state building. The constitution of the state is a key document in laying down the legal infrastructure of the newly established state, since it is the supreme law of the land especially in places that have witnessed long term armed conflicts.173 Accordingly, to combat honour-based violence in the legal process, the constitution must be gender- oriented.174
In the process of resolving conflicts, peace treaties contain the main constitutional principles of what the post-conflict society should look like. To design a gender- oriented future constitution, women must be represented strongly in negotiating peace
168 Ibid, 124. 169 Ibid, 128. 170 Ibid, 125. Ludsin argues that there are four discourses developed within the women’s movement. The first is the traditional discourse which focuses on women’s needs within their social roles as wives and mothers. The second is the Islamist discourse which is the based on the ideology of being governed by Islamic rules. The third is the nationalist discourse. Finally, the fourth is the human rights discourse. These different discourses diminished the importance of women’s struggle against oppression and gave an excuse for politicians to overlook the issue of women’s emancipation. For more information see Hallie Ludsin, “Women and the Draft Constitution of Palestine” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2011) 77-78. 171 Dina Francesca Haynes and Fionnuala Ni Aolain et al, “Gendering Constitutional Design in Post- Conflict Societies” (2011) 17 William and Marry Journal of Woman and the Law 509, 510. 172 Ibid, 509 173 Ibid, 512. 174 Ludsin, above n 170, 20. 187 treaties.175 However, since gender is a “trivial matter” in post-conflict state projects,176 Palestinian women’s participation in peace negotiations was extremely weak. This had a negative impact on the drafting of the future Palestinian constitution.177
Therefore, the Palestinian draft Constitution cannot be considered as a tool for the emancipation of women. On the contrary, many feminist scholars considered it as a setback to Palestinian women’s partial and modest achievements during the armed conflict.178
The Palestinian draft Constitution sounds gender-neutral. However, on closer analysis, it becomes clear that the draft is strongly gender-biased.179 The whole draft is described as problematic as it perpetuates the patriarchal social structure. In other words, gender bias is not exclusive to rights-identifying provisions.180 Haynes argues that:
There is a close relationship between intersectional social identities and the lack of real traction for women’s issues in post-conflict constitutional conversations. The reality of economic status combined with gendered disabilities hits women hardest here, and the failure to translate economic and social rights into the hard law of constitutional frameworks operates as a double disadvantage.181
Despite the equality clause which states that “all Palestinians are equal under the law and judiciary without discrimination because of race, sex, colour, religion, political views or disability”, the Draft constitution is replete with shortcomings.182
Palestinian women’s dream of gender equality is jeopardized by the existence of the Israeli threat, which help to preserve traditions and elevate the consideration of national security when it clashes with individual rights.183 Some scholars argue that the
175 Haynes et al, above n 171, 538-539. United Nations Security Council Resolution 1889, 18200 and 1325 have supported women’s participation in the negotiation process. Ibid, 512. 176 Handrahan, above n 137, 440. 177 Waklat Donya Al-Watan Li Akhbar, Jam’yat Al-Mar’a Al-Amela Tosder Ketban Beonwan Moshraket Al-Mar’a Al-Falistinya Fi Mofwadat Al-Salam (1/2/2018)
Palestinian draft Constitution protects Palestinian women’s rights as long as they do not conflict with existing patriarchal powers.184 In this context, shari’a law is the major source for legislation. Additionally, the draft Constitution states that personal status matters are to be referred to the religious institutions.185 For instance, Article (35) prohibits the government’s interference with family matters. This constitutes a real challenge for women’s rights,186 since it paves the way for the Palestinian government to invoke the private/public dichotomy to abandon its duty to protect women from violence, including honour-based violence.187 In this draft, women’s citizenship is connected to the public/private dichotomy where the government has no active role in regulating the private sphere of the family. Equal citizenship extends beyond the right to vote. It should mean equal access to power.188 However, the draft Constitution has no provisions that give women the right of equal representation in government.189 Haynes argues that the constant use of the term of the “gender-neutral” citizen during the transitional periods enabled the drafters of the Constitution to draft it in a way that gives women only marginal progress in terms of gender equality.190
Examining the provisions dealing with rights shows that the draft Constitution helps perpetuate the status quo and the patriarchal social structure. For instance, it does not impose a positive duty on the state to protect human rights; it requires the state to refrain from committing violations only.191 Additionally, in the draft, women’s rights stem from their personal relationships, not from the fact that they are individuals or members of groups.192 The legislature is also given the power to restrict rights to protect public interests.193 Article (48) deals with family and children’s rights. However, maternal rights and care do not challenge conservative interpretations of the family structure.194 Finally, the draft does not identify the role of the national Palestinian
184 Ibid, 34. 185 Haynes et al, above n 171, 540. 186 Ibid, 541. 187 Ludsin, above n 170, 33 and 77. 188 Ibid, 106. 189 Ibid, 33. 190 Haynes et al, above n 171, 514. 191 Ludsin, above n 170, 119. 192 Ibid. 193 Ibid. 194 Ibid, 205. 189 human rights institution in monitoring the formal justice system for applying the principles of gender equality.195
Overall, the human rights provisions in the draft Constitution state policies more than rights.196 Attempts to marginalize Palestinian women were evident in the third draft which was severely criticized for its ambivalent position on gender equality.197 Some articles implicitly limit of women’s freedoms. For instance, Article (19) provides that all Palestinians are entitled to equal protection under the law without discrimination based on sex (but not gender). Article (23) gives women the right to participate actively, but not necessarily equally, in social, political and cultural aspects of life. Furthermore, some articles are explicitly against women’s freedoms. For instance, Article (35) prohibits government interference with family matters and legitimizes the public-private dichotomy, and Article (48) sets the family rather than individuals as the main focus of protection.
4.2 Analysis of the Sexual Crimes Provisions in the Palestinian Draft of Penal Code of 2011198
Reviewing the draft of the Penal Code of 2011 indicates that no tangible progress has been made since 1960. That is, most provisions of the Palestinian draft were copied from the Penal Code No. (16) of 1960. Accordingly, the summary that follows is brief to avoid repetition.
In the Palestinian Code, Article (486) addresses honour killing. This article states that:
1. He who surprised his wife, daughter, mother, or sister red-handed committing adultery or in an unlawful bed and killed his related female and her partner or one of them immediately must be punished with temporary incarceration for a minimum period of 5 years 2. She who surprised her husband “red- handed” committing adultery or in an unlawful bed and killed her husband and his partner or one of them
195 Ibid, 219. 196 Ibid, 229. 197 Holt, above n 80, 125. In January 1994, women’s committees, human rights NGOs and activists formed an umbrella group which produced a document that was called the “Women’s Charter” to be presented to the PA for inclusion in the constitution. The document aimed at superseding the laws that discriminate against women, guaranteeing the rights of women in the political, economic, social and educational spheres, and their equality before the law. It also demanded that the state of Palestine comply with international women’s rights standards. Ludsin, above n 170, 34. 198 This draft is not published in any available formal source at the time this thesis was written. However, this draft will be passed to the Palestinian Legislative Council, after it is formation as a result of new elections, to go through the process of enacting legislation. 190 immediately must be punished with the temporary incarceration for 5 years. 3. The aggravating condition cannot be applied in this context.
This article perpetuates honour killing instead of condemning it. Ostensibly, this article has borrowed more elements from the crime of passion compared to Article (340) of the Penal Code No. (16) of 1960.199 For instance, Article (486) of the draft of the Penal Code of 2011 is based on the idea of mitigating the penalty rather than fully exempting the perpetrator from punishment. The article also explicitly states that the killing must occur immediately, while the perpetrator is in an extreme state of loss of self-control or fit of fury. On the other hand, the article has borrowed some elements of the traditional honour code, such as criminalizing sexual acts other than sexual intercourse and expanding the beneficiaries of the mitigated penalty to include fathers, brothers and sons. Moreover, excluding this crime from the application of the aggravating condition implies a justification for the act of killing itself.
Surprisingly, the article adopts an innovative rule following the steps of the new Jordanian amendment of Article (340) of the Penal Code No. (16) of 1960 which took place in 2001. This rule states that women can enjoy the same mitigated penalty if they kill their husbands on honour grounds. Practically, the honour code which is represented in Article (340) of the Penal Code No. (16) of 1960 is rarely applied in the courts.200 It is likely that this will also happen with Article (486) of the draft of the Penal Code of 2011. This means that any claims that there has been progress in the direction of equality and gender neutrality is likely to be theoretical only.
Regarding other sexual crimes, the Palestinian draft of the Penal Code followed the same steps as the Penal Code No. (16) of 1960 in many aspects. For instance, according to the draft, incest is a form of adultery between blood relatives. This definition stems from Article (440) of the draft which does not differentiate between males and females, and considers victims as equal perpetrators, exactly like Article (285) of the Penal Code No. (16) of 1960. Additionally, Article (441) of the draft copied Article (286) of the Penal Code No. (16) of 1960 by limiting the legal pursuance of incest crimes. Article (441) states that “legal pursuance in incest crimes is only based on complaints filed by relatives up to a fourth degree”.
199 For more details in this regard see Chapter Two of this thesis. 200 This matter is examined further in Chapter Six of this thesis. 191
In relation to rape, the draft avoids the complex and unjustified female age categories of the Penal Code No. (16) of 1960. The only age requirement is the age of legal capacity, which is 18 years old. However, Article (459) of the draft, excludes wives from legal protection by defining rape as “sexual intercourse that takes place between unmarried adults”. The article also states that committing an act of sexual intercourse with a female whose age is less than 18 years old constitutes an aggravating circumstance. However, Article (480) of the draft states that the perpetrator must know the age of the victim. This means that a perpetrator can evade the aggravated penalty by claiming his unawareness of the actual age of the victim, as under the Penal Code No. (16) of 1960. Furthermore, Article (466) of the draft copied Article (304) of the Penal Code No. (16) of 1960 regarding “seducing” a female with the promise of marriage. Finally, it is worth noting that Article (464) of the draft is unprecedented. This article states that “whoever commits “unnatural” sexual intercourse with his wife by coercion, threat or deception must be fined. Legal pursuance is based on a complaint filed by the wife”. The extraordinary aspect of this article is that even if the state is willing to penetrate the private sphere, this penetration does not consider the impact of the crime on victims. Additionally, this article reflects the prominent level of loyalty that all citizens must bear to the patriarchal state. It is evident that honour, as a manifestation of loyalty, has an outstanding value in the draft of the Penal Code of 2011.
The presence of Article (486) of the draft of the Penal Code of 2011, which is more passion-based compared to Article (340) of the Penal Code No. (16) of 1960, has a specific justification. That is, Article (340) was an unsuccessful attempt by the Jordanian legislature to strike a balance between tradition and modernity within Jordanian state nationalism. However, Article (486) was the outcome of an unsuccessful attempt by some Palestinian activists and feminists to create a syncretism between the minimum partial rights which Palestinian women acquired within the PLO nationalism project and the agenda of the Palestinian state nationalism project. Creating that syncretism is essential due to the coexistence of the two Palestinian nationalism projects.
This discussion of the PA’s legislative activity regarding combating honour-based violence explains why the phenomenon is exacerbating the problems facing women and why the prospects for future progressive law reform in the short-term are poor.
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4.3 The Pillars of the Punitive Policy in the Palestinian Draft of the Penal Code of 2011
The static nature of the legislative process is evidenced by the fact that the punitive policy of the Palestinian Penal Code concerning sexual crimes provisions is not significantly different from the punitive policy of the Jordanian Penal Code. The main pillars of the Palestinian punitive policy can be summarized in the following points:
• The institution of the family and the values of the collective society are protected at the expense of the individual’s rights. • Women are criminalized even if they are victims. In sexual crimes, women are the victims and the offenders at the same time. • Women are pushed to the private sphere where justice is not meant to be applied. Justice is a value that is exclusively reserved for the public sphere. • Women are regarded as commodities whose bodies are owned by the men of their families. • Laws governing sexual crimes offer insufficient legal protection to women. The legal system intends to leave room for the traditional honour system to function. In this way, state law delegates part of its power to the informal familial justice system.
5. Conclusion
This chapter has highlighted the concrete social relations that result from the intersection of the specific social divisions within the various co-existing nationalism projects affecting Palestine. The main outcome of this intersection is the constant evolution of honour as a sign of loyalty that persists in the legislative process. Honour as a sign of loyalty enjoys a high level of versatility. During the era of Jordanian rule in the West Bank, honour had two purposes: balancing between tradition and modernity; and reflecting loyalty to the community. However, the value of honour as a sign of loyalty was elevated as part of the Palestinian nationalism project. The PA’s draft of the Penal Code of 2011 demonstrates the prominence and resilience of the old purpose of honour violence.
These conflicting loyalties undermine women’s status. Women of poor and middle classes were emancipated compared to the women of the bourgeois class until the 193
1940s. That is, the strict regulation of sexuality was felt mainly by women of the bourgeois class. Nationalism helped to spread bourgeois values to the poorer classes and made the strict regulation of sexuality a cross-class phenomenon. Accordingly, the successive nationalism projects increased the burdens placed on women of the lower classes since they were intensively targeted by these nationalism projects. This has led to further deterioration of the status of young women from the Palestinian middle and poor-classes.
This chapter has shown that the legal status of honour-based violence is more complex than the way it is represented in Article (340) of the Penal Code No. (16) of 1960. Analysis presented in this chapter has refuted the prominent argument that legislators are progressive and open to positive change to address honour-based violence. The next chapter explores judicial understandings of the concept of honour and shows how the judiciary is complicit with the legislature in entrenching honour violence within the legal system.
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Chapter Six
Honour-based Violence in the Palestinian Judicial Process
1. Introduction
Chapter Five analysed the part that legislation plays in the current inadequacy of the criminal justice system’s response to honour-based violence. This chapter examines judicial attitudes and practices. It aims to understand the judicial mechanisms by which the legislative punitive policy is transformed into judicial practice. It also shows that both the legislature and the judiciary play a part in continuing to allow the concept of honour to have a mitigating effect in cases of homicide. The evidence presented and analysed in this chapter supports a rejection of the dichotomous position that it is either the legislature or the judiciary that is primarily responsible for the failure to adopt a substantive framework of equality in providing justice for female victims of honour violence. The tensions between tradition and modernity that have impeded legislative reform are also operative in the judicial context.1 One manifestation of this tension is the fact that while some judges defend the status quo, others powerfully advocate for reforms to legislation and court processes to improve the Palestinian legal system’s response to honour violence.
The primary data source for this chapter comes from interviews conducted with 20 judges in the West Bank during 2017. In addition to this, it examines a small set of court decisions involving homicide charges where it was alleged that the crimes were motivated by honour. Accordingly, the chapter is divided into three sections. The first presents the interviews’ data on judicial attitudes, organized around the major themes that emerged. The second section highlights the features of judicial practice through case analysis. The third section analyses these findings based on this project’s primary research questions, and the arguments advanced in previous chapters.
1 Lama Abu Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies” (2010) 2 Comparative Law Review 2, 27. 195
2. Studying Judicial Attitudes Regarding the Criminal Law’s Response to Honour Violence
Interviews as a method of qualitative data collection are defined as “using individuals as the point of departure for the research process assuming that individuals have unique and important knowledge about the social world that is ascertainable through verbal communication”.2 Conducting these interviews with judges is important because all the previous studies regarding judicial practice in honour-based violence have been theoretical and hypothetical. Accordingly, it is necessary to conduct face-to-face interviews to address the assumptions in these studies by either supporting or rebutting them.3 It was discussed in Chapter One that this study is the first of its kind since it focuses on the personal thoughts of judges, their feelings and beliefs.4 This is to understand judges’ standpoints and their reasons for associating certain concepts and practices with cases of honour-based violence.5
2.1 The Methodology
The interview questions were designed to be a helpful method to understand the judicial mechanisms that are used to translate the Penal Code into judicial practice. To achieve this, the questions were semi-standardized,6 and arranged in an interview protocol.7 They were open-ended to give the interviewees the chance to freely express their views on the relevant issues. Open-ended questions enrich the findings and increase the possibility of original qualitative data emerging, which adds value to this thesis. The questions were also categorized in a logical sequence to facilitate the transcription process.8
2 Sharline Nagy Hesse Biber and Patricia Leavy, The Practice of Qualitative Research (London: Sage Publications, 2006) 119. 3 Bruce L. Berg and Howard Lune, Qualitative Research Methods for the Social Sciences (New Jersey: Pearson Education, 2012) 109. 4 Catherine Marshall and Gretchen B. Rossman, Designing Qualitative Research (London: Sage Publications, 1999) 57. 5 Berg and Lune, above n 3, 115. 6 Ibid, 112. 7 See the questions protocol in Appendix A. 8 Berg and Lune, above n 3, 112. 196
According to the rules of conducting empirical research in Australian universities, it is a requirement to obtain ethics approval from a university ethics committee before embarking on the process of conducting interviews. This approval was granted on 12 January 2017.9 Following this, the process of collecting data began with sending invitation letters to potential participants.10 Those judges who generously accepted the invitations to participate in this study had to receive and sign a consent letter and an information sheet about the project and its targets.11
Consistent with the rights of judges guaranteed in the consent form and taking into consideration the sensitivity of their positions, it was necessary to preserve their confidentiality.12 Therefore, the identity of participants was not revealed. Instead, they were categorized in groups, based on their positions in the different judicial jurisdictions. G1 refers to judges of the First Instance Courts and Magistrate Courts; G2 refers to judges of the Appellate Courts; and G3 refers to judges of the High Court. Each participant was given a number within the group. For example, the interview with a judge of a First Instance court is referred to as G1.1 and so on.13
2.2 The Sample
The sample of interviewees is a convenience sample. Convenience sampling is “a specific type of non-probability sampling method that relies on data collection from population members who are conveniently available to participate in the study”.14
9 See the UNSW Human Research Ethics Committee approval number HC16941 in Appendix B. 10 See the form of invitation letter in Appendix C. 11 See the information sheet and the consent form in Appendix D. 12 Bruce L. Berg, Qualitative Research Method (Boston: Pearson Education, 2004) 65. 13 To understand the ligation process in the criminal matters within the Palestinian legal system, it is important to note the hierarchies of the Palestinian courts according to the Criminal Procedures Law No. (3) of 2001. The Magistrate Courts hear some misdemeanours identified by law and all contraventions. The First Instance Courts hear all felonies and most misdemeanours. All court decisions issued by the Magistrate Court can be appealed to the First Instance Court (in its appellate capacity), while the decisions of the First Instance Court as a first-degree court can be appealed to the Court of Appeal. The judgments of the Court of Appeal and the First Instance Court (in its appellate capacity) can be challenged by the Court of Cassation. In the Palestinian legal system, the judgments of the Court of Cassation can be a guiding non-obligatory source of law for all courts, while the judgments of the Court of Appeal can be a guiding non-obligatory source of law to the lower courts. See Articles (167), (168), (323) and (346) of the Criminal Procedures Law No. (3) of 2001. 14 Research Methodology. net, Convenience Sampling (16/5/2018)
Invitation letters were sent to 30 judges. As noted in Chapter One, the scope of this thesis is limited to the West Bank. Therefore, only West Bank’s judges were included.15 Twenty responded positively and expressed their consent to take part in the interviews. The sample included Palestinian judges who work in various levels of courts, from the Magistrate Court to the High Court.16 The first group consisted of nine judges of the Magistrate and First Instance Courts; the second group, seven judges of the Appellate Court; the third group, four judges of the High Court.
It is important to mention that the judges of the Magistrate Courts do not normally adjudicate on felonies and most misdemeanours, since the First Instance Court has the general jurisdiction. However, the chosen Magistrate Court judges are delegated to work in the First Instance Courts and adjudicate on felonies and most misdemeanours. This delegation is a preliminary step for them to be promoted as judges of the First Instance Court.
Since the topic of this project is a sensitive one, the approval of the Palestinian High Judicial Council was required before conducting the interviews. This was granted in April 2017.17 After obtaining approval, interviews were conducted with the 20 judges.18
15 Fieldwork in the Gaza Strip was not feasible because it has not been under the sovereignty of the Palestinian Authority since 2007 and all reconciliation efforts since that time have failed. Accordingly, obtaining approval from the judicial authorities in the Gaza Strip to conduct field research was impossible. The task of conducting interviews with the judges of Gaza became more complicated because the government in Gaza established a new judicial body which was called the High Justice Council as a substitute for the High Judicial Council that is only working in the West Bank. Majles Al-Adel Al-Aala, Tshkeel Majles Al-Adel Al-Aala (1/10/2017)
All the interviews were conducted at their offices, either early in the morning before their court sessions or late in the evening after they had completed their hearings for the day. This was done because it is important to create a comfortable atmosphere for the interviewees.19
The convenience sample of judges contains various characteristics: Firstly, the social background of judges. That is, the judges belong to different segments of Palestinian society. Secondly, the work place and the location of the courts in the regions of the West Bank. Thirdly, the gender of the interviewed judges. Eight female and twelve male judges were interviewed. Fourthly, the place of legal education. Four of the interviewed judges obtained their law degrees from Western countries: France, Sweden, Italy and Ukraine, while the others obtained their degrees from Palestinian and Arab universities. Fifthly, the age of judges. The ages of the interviewed judges were between 30 and 60 years. Sixthly, the level of legal education. Two of the interviewees were holders of a PhD degree, and six were holders of master’s degree, while the rest held bachelor’s degree.
2.3 The Transcription Process
The interviews were conducted in Arabic since most of the interviewees are not fluent English speakers. Interviewing them in their mother tongue helped them to express themselves freely without facing language barriers. Most of the interviews were audio recorded. A small number refused to be recorded and this was a condition of their consent. In these instances, written notes were taken while the participants were speaking.
After the interviews were completed, the audio recordings were transcribed. The transcription process went through two phases. The first phase was writing the full text of the interviews in Arabic by listening to the audio recorded interviews or going back to the handwritten notes. The second phase was translating the full Arabic text into
interviews”. See Les Back, “How Many Qualitative Interviews Is Enough?” National Centre for Research Methods Review Paper
English. The translation process was crucial since it was important to preserve the original meaning of the interviews during the process of translation.
The main questions that were asked to the participating judges were the following:20
The Concept of Honour-based Violence:
What is the origin of the phenomenon of honour-based violence?
• Is it a religious phenomenon? • Is it a traditional phenomenon?
Article (98) v. Article (340):
Tell me about your experience in applying these two articles
• When do you apply Article (340)? • When do you Apply Article (98)? • To what extent do you resort to Article (98) of the West Bank’s Penal Code as a substitute for article (340)?
Honour-based Violence as a Form of Resistance:
Can you tell me about your experience of applying Article (98) during the periods of unrest?
Judges’ Understanding of Gender Equality/ Honour Violence and Gender Equality:
• Can you tell me about your understanding of gender equality? • How did you shape your understanding of gender equality?
2.4 The Main Themes that Emerged from Thematic Analysis of the Interviews
Thematic analysis is defined as a “method for identifying, analyzing, and interpreting patterns of meaning ‘themes’ within qualitative data”.21 Main themes are identified by
20 See the questions protocol in Appendix A. 21 Victoria Clarke and Virginia Braun, “Thematic Analysis” (2017) 12(3) The Journal of Positive Phycology 297, 297. 200 reading the transcription in depth and searching for logical common denominators for the main concepts. Analysis of the 20 interviews identified the following themes:
• Honour as Custom: Judges regard honour as a product of custom rather than religion.
• The Limits of Transplantation: A significant weakness in the Penal Code No. (16) of 1960 is that it was transplanted from other laws with insufficient attention to local Palestinian conditions, and it is outdated.
• Nominal Legal Reform: Judges are doubtful about Palestine’s engagement with the CEDAW, believing such moves to be cynical attempts to improve Palestine’s international community standing, rather than genuine attempts to address gender inequality and violence against women.
• The Unique Nature of Honour-based Violence in the Palestinian Context: The Palestinian context is unique due to the influence of several political nationalism projects in shaping honour-based violence.
• The Role and Authority of Judges in Palestine’s Civil Law System: Judges feel constrained by a lack of autonomy in Palestine’s civil legal system.
• The Constraints of Relevant Legislative Provisions and the Punitive Policy: The legislative punitive policy refers to the punitive philosophy of the legislation. Judges are influenced by the principles of the legislative philosophy in relation to sexual crimes. This policy influences their attitudes and practices when adjudicating in cases of honour violence.
These themes are now discussed in more detail, drawing on the interviews to illustrate the main findings of this study.
201
2.4.1 Honour as Custom
As discussed in Chapter Two, codified statutes are the primary formal source of law in the Palestinian legal system.22 The primary formal source of the Penal Code No. (16) of 1960 is the Ottoman Penal Code of 1858 which remained in force until 1951.23 The Ottoman Penal Code was based on the French Penal Code of 1810. This means that the criminal penalties of the Ottoman Penal Code are different from those of Islamic criminal law.24 Customs and traditions are the other primary formal source of the Penal Code No. (16) of 1960.25
Shari’a law and natural law are the secondary formal sources of the Penal Code No. (16) of 1960.26 This means that the Penal Code must be consistent with the general rules of Islamic criminal law.27 The historical evolution of the concept of honour shows that it has a connection with religion and social customs. Accordingly, judges were asked about their understanding of the influence of the formal sources of law, mainly shari’a law28 and customs, on the legislative process.
22 Othman Al-Takrory and Awni Bader, Al-Madkhal La Diraset Al-Qanoon: Nazaryat Al-Qanoon w Nazaryat Al-Haq (Nablus, 1999) 12. [Trans: Othman Al-Takrory and Awni Bader, The Introduction to the Legal Theory: The Theory and the Theory of Right (Nablus:1999) 12]. 23 Mohamed Al-Fadel, Al-Mabade’ Al-Aama Fi Qanoon Al-Oqobat (Dimshaq: 1963) 15. [Trans: Mohammed Al-Fadel, The General Principles of the Penal Code (Damascus: 1963) 15]. 24 In addition to the Ottoman Penal Code, the comparative Penal Codes of the neighbouring countries are important sources of the Penal Code No. (16) of 1960. In this regard, the Lebanese Penal Code of 1943 is the main historical source of the Jordanian Penal Code. Mahmoud Mustafa, Qawaneen Al-Oqobat Fel Bilad Al-Arabya (Al-Qahera:1983) 9. [Trans: Mahmoud Mustafa, The Penal Codes in Arab Counties (Cairo: 1983) 9]. Honour killing is legitimized in Article (562) of the Lebanese Penal Code of 1943. For more information see, Azza Charara Baydoun, “Cases of Femicide before Lebanese Courts” (A Report of KAFA (enough) Violence and Exploitation 2011). 25 Al-Takrory and Bader, above n 22, 14. 26 Ibid. 27 For instance, adultery is criminalized despite the recommendation of the Conference on International Criminal Law in The Hague 1964 to ban criminalizing adultery in the Penal Codes. Additionally, polygamy is not criminalized despite the fact it is criminalized in Western criminal codes. Mohamed Al- Halabi, Sharah Qannon Al-Oqobat Al-Qisim Al-Aam (Amman: Dar Al-Thaqafa Li Nasher W Tawzee’, 1997) 15. [Trans: Mohamed Al- Halabi, The Interpretation of the Penal Code (Amman: Dar Al-Thaqafa for Publishing and Distribution, 1997) 15]. 28 It is worthy of mention that motive is ineffective in shari’a law, and it does not affect the characterization of the criminal act. Therefore, honour killing is a full murder crime from an Islamic legal perspective and the perpetrators are subject to the complete penalty for murder. Issam Abdeen, “Dirsa Qanonya Hawal Al-Qannon Al-Mo’qat Li Elgha’ Al-Mada (340)” (Taqreer Mo’saset Al-Haq, 2014) 15. [Trans: Issam Abdeen, “A Legal Study Regarding: The Provisional Law of Abolishing Article (340)” (A Report of Al-Haq Institute, 2014) 15]. 202
A female judge in the Appellate Court stated:
The honour concept is connected to traditions and social norms. All religions including Islam hallowed the right to life and gave it the priority over the other rights. We conclude that protecting the right to life is more important than protecting sexual chastity. In Islamic criminal law, proving crimes of adultery is almost impossible. Additionally, the penalty must be exacted by the judge and not by male family members. 29
The same judge added:
People do not know much about the history of legislation in Palestine. Therefore, most of them do not know that Article (340) of the Penal Code was taken from the French Penal Code of 1810. The penalty for adultery in Islamic criminal law is clear. Accordingly, the concept of honour and honour crimes cannot be considered as the modern substitute of the Islamic penalty for adultery and illicit sexual relations outside of marriage.30
A male Magistrate Court judge stated:
Honour-based violence is a form of gender-based violence that emerged from surrounding traditions. It is evident that the Islamic penalties for the sexual crimes are immensely different from the penalties stated in the contemporary legislations.31
A male Appellate Court judge expressed his progressive view by stating that:
The concept of honour is deeply connected to social traditions and people’s views on sexual crimes. These views were taken into consideration in our legislations and legal precedents. Unfortunately, one can claim that Arab societies are tribal societies and they did not transform into civil societies.32
A female Magistrate Court judge added:
Honour violence is a traditional tool of exerting control over women. Honour violence emerged from social traditions that classify women as a second sex. Most cases of killing women are justified based on honour grounds. Therefore, killing women is becoming more common. In our Palestinian society, so many women were killed to be deprived of their inheritance. Many perpetrators of these crimes were excused, and they were not subject to deterring penalties.33
29 G.2.1. 30 Ibid. It was mentioned in Chapter Two that Article (340) was copied from Article (324) of the French Penal Code of 1810. This Article was abolished by Article (17) of the Penal Code of 1975. Abdeen, above n 28, 16. 31 G.1.4. 32 G.2.2. 33 G.1.1. 203
A male judge from the First Instance Court expressed a very progressive view regarding the relationship between honour violence and shari’a law by stating:
The concept of honour is a traditional concept that was wrongly associated with Islam. Because of this association, honour-based violence is always described as an Islamic phenomenon. This complicates the process of combating honour violence. It is important to note that the traditional Islamic penalty for adultery was applied only once in Islamic history.34
Other judges dissented from the majority by expressing the belief that the concept of honour and honour-based violence are purely Islamic concepts. For instance, a male Magistrate Court judge stated:
The origin of the concept of honour came from the religion’s attempts to combat illicit sexual relations. However, the contemporary legislature mitigated the Islamic penalties to meet the requirements of modernity.35
A male judge in the Appellate Courts stated:
The primary sources of the Penal Code are legislations and customs. On the other hand, shari’a law is the secondary source of the code. Palestinian law must be consistent and harmonized with these sources. The idea of honour is deeply rooted in Islamic criminal law and was perpetuated by customs. Therefore, the current Penal Code reflects these values.36
Another male judge in the Appellate Court added:
The concept of honour is a religious concept. This religious concept was codified in the legislation because Shari’a law is a secondary formal source of the Penal Code.37
Finally, a male judge in the Appellate Court expressed a traditional view regarding the relationship between honour violence and shari’a law by claiming:
If we review Islamic criminal law and compare it with the contemporary Penal Code, we conclude that all the contemporary penalties in the current Penal code are derived from shari’a law. Therefore, Article (340) of the Penal Code No. (16) of 1960 is consistent with the Islamic penalty for adultery. It is true that Article (340) has a Western French origin. However, it is consonant with shari’a law. That is, the contemporary Penal Code identified a specific contemporary mitigated penalty for the crime for adultery, but this penalty is not deterring. Therefore, Article (340) is crucial and complementary to the crime of
34 G.1.3. 35 G.1.7. 36 G.2.6. 37 G.2.3. 204 adultery article. This means that the abolition of Article (340) enhances the process of disabling the rule of shari’a law. 38
These comments suggest that most judges realize that the concept of honour is connected to social traditions and norms only. Moreover, some judges realize that the traditional concept was Islamized and incorporated into the legislative process as an Islamic concept. On the other hand, a few judges believed that the concept of honour and honour-based violence are purely Islamic concepts.
2.4.2 The Limits of Transplantation
As discussed in chapter two, the Palestinian legal system is complicated by the complex political situation. That is, successive political powers have left their legislative heritage behind.39 For instance, in the West Bank, Ottoman, British Mandate and Jordanian legislation are still into force. The process of legal unification has been taking place since the summer of 1994.40 This process was begun by the Executive Authority on 5 July 1994 and has been continued by the Palestinian Legislative Council since 3 March 1996.41
Many interviewed judges considered legal transplantation to be a fundamental challenge impeding the process of legal reform. For instance, a female judge in the Magistrate Court claims that:
The challenge that impedes the process of legal reform is copying legislations that are not consistent with the speciality of the Palestinian context. Not only do the legislators copy these legislations, but they also distort the original texts. By doing so, the legislators ignore the fact that each legislation has a vision and a philosophy that cannot be split. Jordan is the closest Arab country to Palestine. However, the Jordanian legislations are not necessarily suitable for Palestine.42
Another female Magistrate Court judge added:
Training judges on applying gender equality principles in litigation procedures collides with the unconscious process of transplanting foreign laws.43
38 G.2.7. 39 Ma’had Al-Hoqoq Fi Jam’et Birzeit, Al-Wada’ Al-Qanoni Fi Falsteen (1/12/2017)
A male Magistrate Court judge reported.
The legislative authority intentionally ignores and marginalizes the practical views of judges in law- drafting processes. Therefore, judges’ participation in the legal committees of drafting legislations is weak. In most cases, legislators resort to the option of copying the legislations of neighbouring countries mainly, Jordan and Egypt. Moreover, in some extreme cases, legislators transplant the legislations of European countries. The juvenile justice law is a prominent example of the process of arbitrary law transplantation process.44
Finally, a female Appellate Court judge added:
The Palestinian legal infrastructure is suffering from a major defect. For instance, the applied Penal Code No.16 of 1960 which represents the substantive criminal rules is a Jordanian legislation. On the other hand, the Criminal Procedure Law of 2003 which represents the procedural criminal rules was copied from the Egyptian law. That unaware transplantation creates a contradiction between the substantive and procedural criminal legal rules. The outcome is complicating the status of gender equality.45
The applied Jordanian Penal Code itself was transplanted. Moreover, the problem of the legal unification process is that it was based on borrowing comparative legislation without taking into consideration the speciality of the Palestinian social structure and political contexts. In other words, replacing the outworn statutes with modern legislation was not successful.
2.4.3 Nominal Legal Reform
The other problem that impedes substantive legal reform to combat honour violence is the lack of serious political will to facilitate tangible change. The efforts of the Palestinian government were described by some judges as nominal and designed only to attract foreign aid.
2.4.3.1 Accession to the CEDAW
As discussed in Chapter Two, combating violence against women in general, and combating honour-based violence in particular, are two targets in the Palestinian governmental agenda. The Palestinian Cabinet issued a decree in 2009 to urge
44 G.1.7. 45 G.2.4. 206
Palestinian ministries to incorporate the principles of gender equality into ministerial plans and adopt gender-sensitive budgets.46 Additionally, the Cabinet established the National Committee for Combating Violence against Women in 2008 which was responsible for drafting the Strategic Plan for Combating Violence against Women. The strategy came into being in 2010 to cover the period from 2011 to 2019.47
In addition to the Strategic Plan, the Palestinian Agenda of National Policies was issued in early 2017 to cover the period from 2017 to 2022. The three pillars of this agenda are: preparing Palestinian society for future independence; establishing a comprehensive reform process and developing the quality service offered by the government; and establishing social and economic sustainable development.48
Palestine first adopted the CEDAW by initially ratifying it in 2005. This initial ratification was based on a Cabinet decree.49 Palestine ratified the convention unilaterally in 2009. That unilateral accession was based on the Presidential Decree No. (19) of 2009. Finally, after a year and a half of the UN General Assembly’s recognition of Palestine as an observer state,50 it acceded to the CEDAW officially with no
46 Al-Itihad Al-Am Li Mar’a Al-Falestinya, Al- Kota Al-Istratejya Li Mokafhet Al-Onof Deda Al-Mar’a men 2011 ela 2019, 8 (16/4/2016)
It was essential to investigate judges’ opinions regarding the CEDAW and the Palestinian government’s efforts to comply with international standards to combat violence against women, including honour-based violence. Some judges believe that the CEDAW is a Western tool to export Western values into Palestinian society.
For instance, a female Appellate Court judge claimed:
I have worked as a judge for twelve years and before that I worked as a lawyer with the Women’s Centre for Legal Aid and Counselling. Additionally, I am currently a member of the Gender Unit in the Palestinian High Judicial Council. However, I did not have the chance to read the provisions of the CEDAW because I believe it is a Western tool.53
A female Magistrate Court judge reported:
The Palestinian accession to the international conventions is merely a political achievement to prove that Palestine is a member of the international community. However, this accession cannot be considered a legal achievement. I think it is difficult to apply the convention of the CEDAW on the ground because it is designed for Western societies.54
A female First Instant Court judge added:
Palestinian society is a conservative society. The CEDAW aims at entrenching Western extremist values regarding women’s rights. We cannot accept the Western vision that is dictated to us through the international conventions.55
Discrimination against Women CEDAW of 1979” (A Report of The Independent Commission for Human Rights, 2013) 7. 51 “Taqreer Falsteen Al-Awal Hawal Tatbeeq CEDAW” (Taqreer Wazart Al-Kharijya Al-Falastinya, 2017) 9 at:
A male First Instance Court judge reported:
We cannot deny that some judges do not believe in international standards as a credible source of law. The denial of international standards as a source of law is enhanced by the vague relationship between international law and local Palestinian law.56
Some judges also described the governmental efforts in this domain as “complimentary procedures”, to please foreign donors in order to attract foreign aid to the Palestinian Authority. The interviewed judges justified their claim by highlighting the argument that the international conventions are non-binding in the Palestinian local context. In other words, ratifying the CEDAW is merely a political step. It has no legal effect on the ground if this ratification is not accompanied by a clarification regarding the obligatory force of the international conventions within the local Palestinian legal system.
A male First Instance Court judge clarified the issue by stating:
The Palestinian Basic Law did not define the status of the international standards and the mechanisms of applying them within the local legal system. Therefore, judges are facing the dilemma of identifying the status of the international conventions: whether they are automatically performed within the local legal system or they need to be incorporated into the local legal system by issuing legislations that transform these international standards into local law.57
Another female Magistrate Court judge reported:
The vague status of international standards in the Palestinian legal system is a fundamental challenge. Some judges invoke the claim that international conventions including CEDAW do not possess the obligatory force within the local legal system to evade training in gender equality matters. These claims strip the training process of its meaning and complicate the process of legal reform to combat violence against women.58
A female Appellate Court Judge summarized this problem by stating that there is a division in the Palestinian legal community regarding the obligatory force of the CEDAW to which the Palestinian Authority has officially acceded since April 2014. It is true that Article (10) of the Palestinian Basic Law made it a legal obligation upon the
56 G.1.3. 57 Ibid. 58 G.1.9. 209
Palestinian Authority to accede to international treaties. However, it did not define the nature of the mechanisms of applying these treaties within the local legal system. In this regard, there are two legal approaches (systems). The first is the unilateral system where international standards have the same legal value as local legislation. Therefore, there is no need for the international standards to go through the local legislative channels. The second is the bilateral (dual) system where the local legislative authority must issue local legislation that incorporates the international standards into the local legal system. In other words, the international standards must go through the local legislative channels. The Jordanian Constitution has identified its position regarding international standards, while the Palestinian Basic Law has remained silent.59
In this context, it is important to highlight the fact that the history of the Palestinian judicial processes and precedents is replete with examples where judges have reasoned and justified their judgments based on international treaties. For instance, in a very prominent Palestinian judgment, the judge repealed the Oslo Accord.60 In another precedent, the judiciary handed down a judgment based on the Convention on the Rights of the Child of 1989 which Palestine acceded to in April 2014, along with 29 other international treaties including the CEDAW.61
The interviews show that most of the interviewed judges believe that the governmental efforts to combat violence against women by acceding to international conventions are only nominal. It is also evident that the Executive Authority’s political will toward combating honour-based violence through accession to international human rights treaties is weak. However, it may be the CEDAW in particular, rather than international
59 G.2.4. 60 For more information about the case see Al-Jazeera.net, Al-Hokom Beelgha’Itifaqyet Oslo (30/6/2017)
2.4.3.2 The Abolition of Article (340) of the Penal Code No. (16) of 1960
The Palestinian ratification of the CEDAW with no reservations has several legal ramifications: First, submitting periodical reports to the Committee of Elimination All Forms of Discrimination against Women to inform it of progress in implementing the rules of the convention; secondly, guaranteeing the legislation’s consistency with the provisions of the convention; finally, adopting affirmative action procedures to facilitate and speed up the process of entrenching the principle of gender equality.62
Palestine submitted its first periodic report to the CEDAW Committee in March 2017. Reviewing the report shows that Palestine has made little progress in adjusting its statutes and making them consistent with international standards. The report highlights the problematic articles of the Penal Code No. (16) of 1960 and compares them with the articles of the new draft of the Penal Code of 2011 which also has many problematic provisions.63 An interviewed female Appellate Court judge stated:
The new draft of the Penal Code did not create a tangible change regarding protecting women from violence. It almost has the same problematic provisions as the Penal Code No. (16) of 1960. It is sad to say that after 51 years of the issuance of the Penal Code of 1960 no progress has been made.64
The only achievement highlighted by the report regarding reforms to local legislation is the abolition of Article (340).65 As discussed in Chapter Two, the article was abolished by the Provisional Law No. (7) of 2011 which was issued on 15 May 2011.66
62 Nasir, above n 50, 25-44. 63 “Taqreer Falsteen Al-Awal Hawal Tatbeeq CEDAW” (Taqreer Wazart Al-Kharijya Al-Falastinya, 2017) 10-14 at:
However, Article (340) was rarely applied in practice.67 A female Appellate Court judge reported that:
The abolishment of Article (340) did not make any difference into judicial practice. Judges never applied (340). Instead, they apply Article (98) automatically.68
A male Appellate Court judge stated:
The excuses that are stated in Article (340) are difficult to apply. Accordingly, they are not widely known in judicial practice.69
A male Magistrate Court judge added:
In judicial history, Article (340) has never been applied. The conditions of applying this article are very complicated so judges prefer to apply Articles (98) or (99).70
A male Appellate Court judge stated:
I worked as a judge in the criminal divisions of the Magistrate, First Instance, and Appellate Courts for 15 years and I never applied Article (340).71
Another male Magistrate Court judge added:
Superseding Article (340) did not decrease the killing of women on honour grounds. This step was merely a symbolic step that has no effect on the ground. It aims to attract more funds from foreign donors.72
A female Magistrate Court judge stated:
Abolishing Article (340) which was not applied in practice was merely media propaganda to satisfy donors.73
A male Appellate Court judge added:
committee studied the article and its implications and recommended its abolishment in a memorandum submitted to the President. For more information, see Abdeen, above n 28, 5. 67 Ibid, 6. See also Ahmad Al-Ashqar, “Qatal Al-Nisa’ Ala Kalfyat Al-Sharaf: Dirasa Tahlilya Li Al- Tashree’ w Ahkam Al-Qada” (Taqreer Maktab Al-Mofwad Al-Sami La Hoqook Al-Ensan, 2014) 66-67. [Trans: Ahmad Al-Ashqar, “Murder of Women in Palestine under the Pretext of Honour: Legislation and Jurisprudence Analytical Study” (A Report of The United Nations Human Rights Office of the High Commissioner, 2014) 66-67]. 68 G.2.1. 69 G.2.5. 70 G.1.2. 71 G.2.3. 72 G.1.4. 73 G.1.6. 212
The President abolished Article (340) in reaction to the killing of a young woman in Hebron. However, the article was never applied and the perpetrators who killed the young woman in Hebron were found innocent. The fact that the abolished article was not applied in judicial practice and that the perpetrators in the incident that was behind this change were found innocent74 show that the attempts for change are not serious.75
Another male Magistrate Court judge stated:
We all know that Article 340 is rarely applied. Therefore, its abolishment is meaningless. However, if we assumed that the article is widely applied, its abolishment will be fruitless if we keep the other sexual crimes articles in force with no change. The concept of honour is a crucial concept in the applied Penal Code. The philosophy of all provisions on sexual crimes are based on this concept. Therefore, removing one article while keeping the other articles untouched is unwise and reflects a superficial understanding of reform.76
In summary, all the interviewed judges stated that they had never applied Article (340). Furthermore, according to many of the interviewees, the fact that the President abolished a defunct article reflects the weak political will to make any changes to the status quo.77 To prove the lack of political will for progressive legal change, some judges criticized the contradictions in the Palestinian legal structure. For instance, a female Appellate Court judge stated:
We cannot assume that there is political will behind seeking to change the status quo based on abolishing Article (340). The legislative effort of the Palestinian Authority shows something to the contrary. For instance, if we study the Criminal Procedures Law of 2003, we will find out that the new legislation is based on the idea of curtailing and limiting the jurisdictions of the public prosecutors. This affects their ability to protect victims, mainly the victims of honour-based violence. Additionally, the new Criminal Procedures Law does not offer guarantees of a fair trial in honour-based violence cases. For
74 For more information see Jaredet Al-Watan, I’lan Bara’et Al-Mothameen Fi Maqtal Aya Barad’ya Li En’dam Al-Adela (1/11/2017)
2.4.4 The Unique Nature of Honour-based Violence in the Palestinian Context
Chapter Five discussed the importance of the concept of honour in the main co- existing nationalism projects that are affecting Palestinian efforts at reform. The interviewed judges were asked about their views on the importance of the concept of honour in the Palestinian social structure. A male judge from the High Court claimed:
The dimensions of killing women on honour grounds are more complicated than they seem. We think that the problem will be solved, and the number of victims will decrease drastically after abolishing Article (340) which is not applied in the courts, while the problem is caused by the interaction of many different factors. If we want to solve the problem we need to understand how these factors interact with each other.79
A female judge in the High Court highlighted the speciality of the Palestinian case by stating that:
It is good to benefit from comparative experiences. However, we should take into consideration that the Palestinian case is different from any other case including the Jordanian case.80
2.4.4.1 The Political Factor: Honour Violence as a Sign of Loyalty
There were divergent views amongst the judges as to whether the prevalence and nature of honour violence is related to the competing Israeli and Palestinian nationalism projects. To understand judges’ views regarding this matter, judges were asked about the response of criminal courts to honour crimes during the times of unrest.
78 G.2.4. 79 G.3.1. 80 G.3.2. 214
A male First Instance Court judge reported:
The concept of honour is a crucial concept in the Arab social structure. However, the concept of honour has a prominent position in the Palestinian social and legal structure. Honour is a socially protected value in a society which struggles with a prolonged occupation. Therefore, the Palestinians exaggerate protecting the value of honour in order to protect their women from becoming agents for Israeli intelligence. The Israelis followed the approach of recruiting young Palestinian women to cooperate with them by exploiting these girls’ promiscuous behaviour and blackmailing them. It is evident, that honour- based violence and honour crimes are more frequently committed during times of unrest. On the other hand, perpetrators are more encouraged to commit these crimes in the times of unrest because of the high potential for evading the legal penalty.81
A male High Court judge added:
The honour concept was highly used by the Israeli occupation against Palestinians. That is, honour was used as a tool to recruit agents who would cooperate with the Israeli occupation against their own people. The Israeli intelligence used the concept of immoral behaviour to blackmail Palestinians mainly, women, to downfall Isqat and force these women to work with them. No one can deny the Israeli occupation’s influence exerted to reproduce the backward concept of honour and promote it among the Palestinians. Therefore, I can claim that our society was more progressive before the Israeli occupation. Women were unveiled, and the rates of honour violence were much less than nowadays.82
A female Appellate Court judge raised a crucial issue by stating:
In addition to the direct impact of the Israeli occupation of enhancing the concept of honour by down falling the Palestinian youth mainly women, there is another indirect influence form the Israeli occupation that increases the rates of honour crimes. That is, honour violence is increasing among the families of Palestinian prisoners in Israeli jails. For instance, Article (98) was applied in a case of honour killing in Jenin city against a Palestinian lady who was killed by her brother. The lady was married to a Palestinian prisoner in Israeli prisons and raped by her husband’s uncle. Accordingly, she got pregnant. Her brother discovered the illicit relationship and killed his sister. During my work as a judge I heard so many stories about wives and daughters of Palestinian prisoners who were exposed to different forms of sexual abuse.83
Not all judges saw a connection between the Israeli occupation and the increasing rates of honour-based violence. Some judges did not recognize the intersection between the social divisions and the different nationalism projects. For instance, a male Appellate Court judge stated:
81 G.1.3. 82 G.3.1. 83 G.2.1. 215
There is no connection between the high rates of honour violence in Palestinian society and the violence of the Israeli occupation. Honour violence is a purely Palestinian problem that we cannot relate to occupation.84
Another male Appellate Court judge argued:
We cannot blame the Israeli occupation for the internal, Palestinian social problems. Therefore, I cannot see that there is a bond between honour violence and the policies of the Israeli occupation.85
The other group of judges were reluctant to refer to the occupation as a major cause for the increasing rates of honour violence. For instance, a male Magistrate Court judge stated:
The economic factor is a major factor that affects the high rates of honour violence. However, the influence of the political factor exists but it is weak when compared with the influence of the economic factor.86
Another male Magistrate Court judge added:
The occupation impacted the increasing rates of honour violence. However, I think the main reason for that exacerbation is the weakness of religious faith.87
2.4.4.2 The Economic Factor: Class and Honour Violence
It was discussed in Chapter Four that the documented cases of honour killing, the most extreme form of honour-based violence, show that honour-based violence victims predominantly belong to the economically marginalized social classes. For instance, most of these crimes took place within poor families in villages and refugee camps.88
Most judges agreed with the fact that social class is a crucial factor to study in the cases of honour-based violence. For instance, a female Appellate Court judge stated:
We cannot deny the importance of the economic factor when we evaluate honour-based violence in Palestine.89
84 G.2.6. 85 G.2.5. 86 G.1.2. 87 G.1.4. 88 For more details see Chapter Four of this thesis. 89 G.2.1. 216
A male Magistrate Court judge stated:
I noticed that the economic situation has a significant impact on increasing honour violence. That is, most of these crimes are committed in refugee camps and areas that are far away from the sovereignty of the Palestinian Authority.90
A male First Instance Court judge added:
Honour crimes are always committed in poor and crowded communities where gossip can be spread quickly.91
A male Appellate Court judge also stated:
These crimes are very common in the less fortunate social classes which struggle with extreme poverty and high rates of illiteracy. On the other hand, these crimes are very rare in the higher classes. I worked as a Public Prosecutor in the city of Nablus for 7 years. During that time, all the cases of honour killings that I was involved in, took place in refugee camps.92
A male High Court judge stated:
The economic factor is the main factor behind the crimes of premeditated killing. I can say that behind so many cases of honour killing there is a conflict related to money or women’s right to inherit. In other words, civil conflicts can be the reason behind honour killing.93
Based on these interviews, it can be concluded that the economic factor has several dimensions, such as poverty and illiteracy, conflicts over money, as well as resistance to women’s rights to inherit.
2.4.5 The Role and Authority of the Judges in Palestine’s Civil Law System
As discussed in Chapter Two and in the first theme of this chapter, the legal system in all Arab countries, including Palestine, is based on the civil law system where codified statutes are the primary formal source of law. The judicial authority has no formal role in law-making.94 In other words, the judiciary’s key role is applying legislation, but it
90 G.1.2. 91 G.1.3. 92 G.2.2. 93 G.3.1. 94 Ahmad Mohmmad Al-Rifa’i, Moqdema Ela Olom Al-Qanonya: Nazaryat Al-Qanoonya (Banha: Jam’at Banha, 2008)
A male judge in the Appellate Court stated:
Judges deal with legal texts. These legal texts are very important in the civil legal system, since legislation is the main source of law. Unfortunately, judges cannot resist the existing legislative policy. Sometimes judges must apply the legal text automatically. Moreover, judges’ views are ignored in the process of suggesting and drafting new legislation. For instance, the judicial authority was surprised with the issuance of a new Juvenile Justice Law which judges had no role in drafting. Despite that, we had to apply this law. 98
A male judge in the Magistrate Court added:
Judges in the civil law system cannot override the legal text in the civil legal system. Therefore, judges do not enjoy authority to create future legal change.99
Additionally, a male High Court judge stated:
The key role of the judge in the civil legal system is applying the legal provisions. These provisions are the judicial tools that enable judges to lay down justice and rule of law.100
A female High Court judge reported:
Judges’ main problem is the backward legal provisions. My work as a judge is greatly restricted by these legal provisions.101
95 Ibid. 96 Legal jurisprudence is the other informal, non-binding explanatory source of law. For more information see Al-Takrory and Bader, above n 22, 14. The advantages of the civil law system are clear. It is simple, and facilities quick access to legal provisions with no effort. These advantages facilitate the process of litigation. Additionally, it helps to create a state of legal unification in the country which leads to the creation of a state of political unification. On the other hand, intensive reliance on legislation was criticized by some jurists, such as Savigny, who described law as a human being that is experiencing a constant state of development. Therefore, rigid legislation cannot meet the developing needs of society. Al-Rifa’i, above n 94. 97 G.1.1. 98 G.2.5. 99 G.1.7. 100 G.3.1. 218
A male First Instance Court judge added:
Western legal scholars argue that Arab legislative authorities are more progressive than Arab judicial systems. These scholars ignored the fact that legislations are the main obstacle that face Arab judges, especially in light of the fact that judges have no role in the law-making process.102
Finally, a female Magistrate Court judge stated:
Judges are applying legal provisions regardless of their personal beliefs. The gap between the legislative authority and judiciary stems from the fact that judges are not involved in the process of proposing legislation.103
There was a consensus among the interviewed judges regarding the impact of outdated legislation. They believe that these statutes are stumbling blocks that impede the process of judicial reform in general, and the process of combating honour-based violence in particular. In other words, judges reported that they do not have the tools to enable them to make real change. Judges also claimed that their limited authority in the civil law system paralyses them. That is, judges can do nothing than applying and enforcing the rules created by legislation.
2.4.6 The Constraints of Relevant Legislative Provisions and the Punitive Policy
Reviewing sexual crimes provisions in the Penal Code in Chapter Five revealed that there are two types of discrimination against women in the legal process: legislative discrimination and judicial discrimination. Legislative discrimination is evident in statutory provisions that involve discriminatory treatment on behalf of males, such as Article (340) and Article (308). It is also evident in the legal provisions that involve equal treatment based on the formal equality principle for the two “unbalanced” gender groups, such as Article (285) and (286) regarding the crime of incest.
The legislative punitive policy concerning honour crimes is manifested in the provisions on sexual crimes. Chapter Five discussed the main elements of the legislative punitive policy: elevating the priority of protecting the family institution, criminalizing
101 G.3.3. 102 G.1.5. 103 G.1.1. 219 victims and pushing women to the private sphere.104 Judges are affected by these guiding principles and concepts in their practice. The impact of the legislative punitive policy on judges becomes more crucial in light of the civil law legal system where judges have little authority in the law-making process.
A male First Instance Court judge stated:
In the process of drafting a modern Penal Code, it is crucial to pay attention to the philosophy of the law and its legislative policy. In general, judges implement the legislative policy. Therefore, even if the judge has her/his own extreme or liberal values and views, he/she has no authority to violate the legislative provisions or act in a contrary manner to the legislative punitive policy (general philosophy) of the law.105
A female Appellate Court judge added:
Judges are affected by some legal provisions, such as Article (308) that rewards the rapist for his crime and punishes the victim for her victimization. This article encourages judges to consider women as commodities and a source of shame. This article represents a main theme in the Penal Code No. 16 of 1960 that considers women a second sex while men are the dominant controlling sex.106
Another female High Court judge argued:
The Penal Code No. (16) of 1960 gives a high priority to protecting family reputation. Giving a high value for the reputation of the family in the collective society urges judges to give biased judgements to protect families at the expense of victims’ rights.107
Additionally, a male Appellate Court judge expressed a very traditional view about the legislative punitive policy by reporting that:
Arab societies are collective societies. Law gives a high priority to protecting the reputation of the family which represents the core of the social structure. Therefore, it is normal to sacrifice individuals’ rights to protect their affiliation to their society. In this regard, I believe that abolishing Article (308) of the Penal Code No. (16) of 1960 in Jordan is a fatal mistake. If the female was exposed to rape, society will not sympathize with her. On the contrary, she will be blamed until she gets married. The problem will be totally solved if the rapist can marry the raped female. The judicial attitude must be consistent with the main values of law, primarily protecting the family sphere. As a judge, I give the raped woman social
104 For more information about the pillars of the legislative punitive policy of the Penal Code No. (16) of 1960 review Chapter Five of the thesis. 105 G.1.3. 106 G.2.4. 107 G.3.2. 220 immunity by forcing her rapist to marry her. Overall, I strongly believe in protecting the social reputation of the female and her family even if I know that I am violating the victim’s right to justice.108
Some judges showed solidarity with the legislature and the legislative policy by justifying the discriminatory provisions. For instance, a male Appellate Court judge justified Article (285) regarding the crime of incest by saying:
Article (285) of the Penal Code regarding the crime of incest is just. That is, the age of the victim is used to aggravate the penalty and it is not used for characterizing the crime.109
Another male Appellate Court judge added:
Article (285) cannot be classified as a discriminatory provision. Women enjoy full legal capacity at the age of 18 and so they are fully liable for their acts.110
The legislative punitive policy described above and judicial loyalty in applying this policy, enhances the perception that the legal system is lenient toward honour violence. Therefore, perpetrators believe that they can easily avoid being penalized for their crimes.111 The above discussion raises an important question regarding judicial practice in Palestine: Is the role of judges as passive and as constrained by the Penal Code as judges suggested in these interviews? The next section examining judicial practice assists in answering this question.
3. Judicial Practices Regarding Criminal Law’s Response to Honour Violence: Insights from Decided Cases
Even though judges complained about their passive role within the civil legal system, there is evidence that they have developed their own techniques and mechanisms for applying the legislative punitive policy. Some judges deploy non-discriminatory provisions against women in the cases of honour violence. A male Appellate Court judge stated:
Most provisions in the Penal Code are general and non-discriminatory. Sometimes the problem is in judicial practice not the legal text.112
108 G.2.3. 109 G.2.6. 110 G.2.3. 111 Al-Ashqar, above n 67, 9. 112 G.2.2. 221
A female Appellate Court judge added:
Some provisions such as, paragraph 2 of Article (304) that is related to corrupting the marital bond is a non-discriminatory provision. However, in judicial practice, only a man can sue another man for corrupting the marital bond, while a woman cannot sue another woman for doing so. This judicial practice emerged from the legislative policy that considers women a commodity that are owned by their families. Therefore, they do not enjoy the full legal capacity of men.113
Another male Appellate Court judge argued:
There are explicitly biased provisions in the Penal Code No. (16) of 1960. However, judges play a crucial role in transforming some of the non-discriminatory provisions into discriminatory provisions to adapt to the legislative punitive policy.114
A female High Court judge added:
Judicial practice distorts some non-discriminatory provisions and transforms them from tools of restoring justice into tools of discrimination against women.115
In order to better understand how judges approach cases involving honour, it is useful to supplement the interview data with a selection of decided cases. Gaining access to court records and judgements is challenging in Palestine; therefore, the analysis will be limited to 20 decisions from the First Instance and Appellate Courts handed down between 1994 and 2011. These cases were gathered through access to the Palestinian judicial database (muqtafi), secondary resources and interviews with judges. The limitations of this small sample, and the impossibility of commenting on contemporary (post-2011) decisions, are acknowledge. However, it is submitted that the cases examined provide useful information about judicial practice.
Based on analysis of the cases (with appropriate cross-referencing to interview data), the following judicial mechanisms can be identified:
113 G.2.4. 114 G.2.6. 115 G.3.2. 222
3.1 Transforming General Provisions into Private Provisions in Honour Killing Cases
It was discussed in Chapter Two that Article (98) provides for a legal excuse of mitigation for the perpetrators of honour killing, while Article (99) gives judges the discretion to mitigate the penalty based on the specific circumstances of the case.116 These articles are general and gender-neutral, and they are not specifically related to honour killing. However, the provisions are widely used to mitigate the penalty for honour killing perpetrators. The constant reference to these articles in the context of honour killing caused them to become significantly connected with these cases.
To understand the legal effects of Articles (98) and (99), it is essential to clearly understand the meanings of the crimes of murder and premeditated murder in the Penal Code No. (16) of 1960. Article (326) of the Penal Code regulates the crime of murder. This article states: “Whoever murdered a person intentionally must be punished by incarceration with hard labour for 15 years”. The crime of murder consists of two main elements: the criminal act and criminal intent. Article (328) regulates premeditated killing which includes the element of previous planning. This article states that the penalty for this killing is execution (the death penalty).
Judicial practice reflects that there is inconsistency in the characterization of honour killing. In some cases, honour killing was characterized as a form of murder crime according to Article (326). For instance, the judgment of Hebron First Instance Court Case No. 79/2005 states:
The criminal act of the perpetrator consists of the perpetrator’s act to achieve his criminal target which is killing the victim. Criminal intent can be concluded based on the circumstances of the case, the tools used for killing, the place of injury, the external manifestations that accompanied the crime and the personality of the perpetrator. Additionally, the circumstances should show the connection between the
116 Legal criminal jurisprudence differentiates between the legal mitigating excuse of Article (98) and the legal mitigating reasons of Article (99). That is, the legal mitigating excuses are identified exclusively by the Penal Code. Applying these excuses is compulsory when they are found. Moreover, the judicial application of these excuses, is monitored by the Court of Cassation. Finally, applying the legal excuses changes the criminal characterization of the crimes. For instance, in cases where the legal excuses are applicable, the characterization of the felony can change into a misdemeanour. On the other hand, the judicial mitigating reasons for the criminal penalty are not identified by the Penal Code. They are based on judges’ discretional authority after evaluating the circumstances of the case. Therefore, they are optional, and judges are not obliged to apply them. Additionally, judges are not monitored by the Court of Cassation when they apply these reasons. Finally, using the discretional authority does not change the criminal characterization of the crime. For more information see Al-Halabi, above n 27, 553-560. 223 criminal act and criminal intent. In this case, the court found that the perpetrator was in the state of rage when he could not make an agreement with his daughter’s sex partner with whom she had sex and gotten pregnant outside of marriage. Accordingly, he poisoned her. So, the elements of the crime of murder based on Article (326) are complete.117
However, in other cases, honour killing was characterized as a form of premeditated killing. For instance, the judgement of Hebron First Instance Court Case No. 22/2010 states:
The perpetrator (the mother) was planning for several days to commit her crime. Once the circumstances were convenient, the mother sneaked to the room of her raped daughter and suffocated her with a piece of cloth while she was asleep. Therefore, honour killing is characterized as premeditated killing.118
Additionally, in Case No. 9/2009, the First Instance Court of Jenin states that the brother’s killing of his sister on honour grounds carries a legal presumption that the murder was premeditated, especially in light of the fact that perpetrator had known about the reality of his sister’s behaviour for two years. The time period of two years excludes the existence of a state of provocation. Therefore, the perpetrator cannot benefit from the provocation excuse of Article (98) where the act must be instant, during or right after the provocation itself occurs. The judge held the perpetrator culpable of premeditated killing based on Article (328) and decided that any claims for mitigation can be only justified based on the judicial mitigating reasons in Article (99).119
3.1.1 The Provocation “Defence” of Article (98)
It was discussed in Chapters One and Two that Article (98) states: “Perpetrators may take advantage of the extenuating excuse, in cases of having committed crimes in a state of fit of fury that resulted from the victim’s unlawful and dangerous act”.
It was also discussed that to apply this article, specific elements must be present. The first element required to apply the provocation defence is the state of extreme rage or a fit of fury. The Jordanian Supreme Court defined this state in its judgment No.
117 Al-Ashqar, above n 67, 14. 118 Ibid, 17. 119 Ibid, 25. Unfortunately, the decision of the First Instance Court was repealed by the Appellate Court which decided that the perpetrator must benefit from Article (98) since he committed killing in the state of extreme rage as a result of the “disgraceful” behaviour of his sister, especially after she told him that she was pregnant outside of marriage. It is believed that the Appellate Court’s conclusion was wrong since the perpetrator had his gun with him. This means the element of previous planning existed and his act was not spontaneous. Ibid, 26-27. 224
111/1989 as “a psychological state that is not significant unless it is so extreme that the perpetrator loses control of his own acts and his mental state of mind and judgment are impaired”.120 The second element is the unlawful act of the victim. This can be the victim’s relationship outside of marriage. The third element is the relationship between the victim and the unlawful act. 121
The inconsistency regarding the conditions of applying Article (98) is evident. The literature review in Chapter One discussed the contradictory decisions of the Jordanian Supreme Court concerning the application of Article (98) to honour killing cases. The first position was between 1953 and 1964 when judges refused to apply Article (98) to honour killing cases. In that era, judges argued that Article (98) is the general article, while Article (340) is the specific one. Therefore, they could not apply the general article to honour killing cases because “the specific constrains the general”. For instance, judgement No. 59/1964 of the Jordanian Supreme Court stated:
Articles (97) and (98) cannot be applied in the cases of killing women on honour grounds. That is because the act of adultery cannot be classified as an imminent, dangerous act which threatens the life of the perpetrator and his family. Therefore, the only article that can be applied in this context is Article (340) which is specific to protect the value of honour, while Article (98) is general and not related to honour.122
The second position was adopted by judges after 1964 when judges started applying Article (98) as a complementary tool to Article (340) in honour killing cases.123 The Jordanian Supreme Court stated: “If the perpetrator heard rumours about the adultery of his sister and killed her after he made sure that she committed that unlawful act, he shall benefit from the mitigated penalty since he committed his act in the state of fit of fury”.124
This position represents judges’ tolerance of honour killing by expanding the beneficiaries of sentence reduction through applying the general article that does not define the provocation defence. That is, the unlawful act and the extent of its danger are
120 Lotfya Sihweel, “Nisa’ Mostabaha Arwahan: Qtal El-Nisa’ Fi Falsteen Fi 2011 w 2012” (Taqreer Markaz Al-Mar’a Li Mos’da Al-Qanonya Wal Irshad, 2013) 26. [Trans: Lotfya Sihweel, “Right of Life Denied: Killing of Women in Palestine in 2011 and 2012” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2013) 26]. 121 Ibid. 122 Ibid. 123 Abu Odeh, above n 1, 20-22. 124 Sihweel, above n 120, 27. 225 not defined. There is also no criterion for measuring the level of fury that makes the perpetrator eligible to benefit from the provocation excuse.125 Unfortunately, with this approach, applying Article (98) in honour killing cases has prevailed. It is important to remember that Palestinian judges are still relying on the judgments of the Jordanian Supreme Court as a non-binding guiding source of law.
This discussion shows that the application of Article (98) is difficult to perceive. A review of related cases shows the problems of applying the article.
A) Applying the Provocation Excuse with Insufficient Justification
Reviewing the judgement of Ramallah’s First Instance Court No. 6/2006 indicates that the court gave the perpetrators the right to benefit from the excuse of Article (98) without justifying the reasons for that decision.126 In other words, the court referred to Article (98) and the fit of the fury in the judgement without explaining its approach in the reasoning. Accordingly, the court held the perpetrators culpable of murder based on Article (326), and then mitigated the penalty based on Articles (98) and (97) of the Penal Code, because of the victim’s pregnancy outside of marriage.
The judgment of Ramallah’s First Instance Court No. 33/2004 also applied Article (98) without justifying that application.127 The perpetrator was held culpable of murder based on Article (326), and the penalty was mitigated based on Article (98). In these two cases, the reasoning of the courts was very general, with reference to the “disgraceful” behaviour of the victim, and the surrounding social traditions, without explaining the presence of the three elements of Article (98).
B) Applying the Provocation Excuse When the Elements are Incomplete
Reviewing the judgment of Hebron’s First Instance Court No.79/2005 indicates that the murder may not be directly related to the unlawful act. On 6 June, the father killed his
125 Abdeen, above n 28, 20. Amnesty International organized extensive advocacy and pressure campaigns in Jordan in 2008 to urge the related Jordanian authorities to modify Article (98) for its dangerous consequences. Ibid, 20-21. 126 In this case, the brother killed his sister after he knew that she was pregnant outside of marriage by poisoning her. The Palestinian Legal and Judicial Database, Qatel Ala Khalfyat Al-Sharf (17/6/2017)
C) Applying Article (98) in the Cases of Premeditated Killing
Highlighting the three elements of Article (98) indicates that the excused crime must be committed when the perpetrator is in a state of extreme rage. However, the Palestinian judiciary has followed an unjustified approach of mitigating the penalty of premeditated killing based on Article (98). This mitigation contradicts the fact that the provocation excuse can be only applied when the murder is unplanned, while previous planning to commit the crime is a crucial element of premeditated murder. The judgment of Nablus’s First Instance Court No. 24/94 held the perpetrator culpable of premeditated killing based on Article (328) and then mitigated the penalty based on Article (98).128 The same approach was followed by Hebron First Instance Court in Case No. 1/96 which mitigated the penalty of the perpetuator of a premeditated killing on honour grounds based on Article (98).129
D) The Problem of Public Prosecution
According to Criminal Procedure Law No. (3) of 2001, the Public Prosecution should appeal the judgments of First Instance Courts where judges have erred. However, in some cases, the Public Prosecution did not play that role. In Hebron’s First Instance Court Case No. 4/95, the chance to review the judgment of the Court was missed. The
128 In this case, the father killed his daughter after he knew about her promiscuous acts. Al-Ashqar, above n 67, 33. 129 The father killed his daughter and his wife after he heard rumours about their immoral behaviour. He tied the hands of the victims and slaughtered them with a knife. Ibid, 32. 227 judgment held the perpetrators culpable of murder based on Article (326) and mitigated the penalty based on Article (98). The lawyer of the perpetrator appealed the judgment, while the Public Prosecutor did not. The Appellate Court decided that the First Instance Court did not explain the reasons for the application of Article (98). Additionally, the court decided that there was no specific incident that proved the indecent behaviour of the victim. Her daughter and husband provided assurances of her decent behaviour. However, based on the rule that “the appellant should not be harmed by his appeal” the Appellate Court could not interfere with the case.
E) Changing the Characterization of a Premeditated Murder
It was previously noted that the provocation excuse which excuses the perpetrator who kills his victim instantly while he is in a state of extreme rage is contradictory to the nature of premeditated killing.130 That is, premeditated killing is associated with previous planning before committing the crime. Some judges are aware of this distinction between murder and premeditated murder. Therefore, they have changed the characterization of the crime from premeditated killing based on Article (328) to the crime of murder based on Article (326), so the perpetrator can benefit from the provocation excuse in Article (98). For example, the judge of Nablus’s First Instance Court in Case No. 209/99 changed the characterization of the crime from premeditated killing to the crime of killing. This is despite the fact that the circumstances of the case indicated that there was previous planning to commit the crime. That is, the victim was killed by her brother who put poison in her drink and he waited outside the room for ten minutes until he had made sure that she was dead. The victim had also filed a complaint against her brother (the perpetrator) accusing him of committing incest with her three months before she was killed.131 The same approach was followed in the judgement of Ramallah’s First Instance Court in Case No. 33/2004.132
130 The First Instance Court of Qalqilya decided in Case No. 70/2009 that the nature of the provocation excuse is contradictory to premeditated killing. In other words, the court cannot hold the perpetrator culpable of the premeditated killing based on Article (328) and then excuse him based on Article (98). Additionally, the court decided that killing on honour grounds is a legal presumption that killing is associated with previous planning. Ibid, 72. 131 Ibid, 30. In Arabian criminal jurisprudence, murder or what is called in Arabic Al-Qatel is defined as a wrongful deliberate non-premeditated killing which is equivalent to “voluntary manslaughter” in English systems. On the other hand, the premeditated killing or Al-Qatel Al-Amad is the planned murder. 132 The Palestinian Legal and Judicial Database, Qatel Ala Khalfyat Al-Sharf (17/6/2017)
Finally, the Provisional Law No. (7) of 2011, which abolished Article (340), also states that Article (98) is no longer applicable in cases of honour killing.133 Despite this, judges still resort to Article (98) in honour killing cases. For example, a female Appellate Court judge states:
Theoretically, Article (98) is not related to honour killing. I believe that this article is very dangerous, because it is easier to apply. It also excuses the perpetrator’s crime based on suspicion. The provisional law that excludes Article (98) from being applied in honour killing cases is ineffective. That is, judges still apply this article despite the latest modification. To do so, judges, in their reasoning, can justify the penalty’s mitigation by referring to the unlawful act of the victim without mentioning the word (honour). I think Article (98) must be abolished because it does not make any sense. It is enough to have the principle of self-defence since it is more logical and narrower.134
Another male Appellate Court judge states:
The Provisional Law No. (7) of 2011 did not change the fact that Article (98) is widely used to mitigate the penalties of honour killing perpetrators. Judges still feel that applying this article is compulsory in order to protect the Palestinian social order.135
These views are supported by Case No.108/2014 of the killing of S.D. The killing was committed in 2014 and the case became prominent in Palestine.136 The Nablus First Instance Court held the perpetrator culpable based on Article (326), then mitigated the penalty according to Article (98).137 This case is discussed in Chapter Seven in the context of illustrating the mechanisms of legal reform.
3.1.2 The Judicial Reasons for Mitigation under Article (99)
It was discussed in Chapter Two that Article (99) states: “If the mitigating reasons are found, the court can substitute the death penalty with incarceration from 10 to 20 years. It can also substitute permanent hard labour with temporary hard labour from 5 to 15 years. Finally, the court can mitigate the penalty of any other felony by half”.
133 It was discussed in Chapter One of this thesis that the Annual Report of the Independent Commission for Human Rights of 2011 showed that Article (98) is still applicable even after the issuance of the Provisional Law No. (7) of 2011. 134 G.2.1. 135 G.2.5. 136 This case is a subject to further analysis in Chapter Seven. 137 Waklet Watan La Akhbar, Sabeqa Qada’ya Fi Qadyet Qatel Mwatina Qbal 3 Sanawat (1/3/2018)
In the interview process, judges were asked about the judicial reasons for mitigation, mainly in relation to Article (99). Some judges sought to justify the application of this article in the honour killing context. For instance, a male Appellate Court judge stated:
Applying the legal excuses of Article (98) is difficult compared to applying the judicial mitigating reasons. Additionally, the judge has discretion to apply these reasons without being monitored by the Court of Cassation. Therefore, the article can be an effective tool in the hands of the judge to achieve justice.138
A male Magistrate Court judge added:
Most judges think that Article (99) is a judicial tool to achieve social justice.139
A female First Instance Court judge argued:
When judges use Article (99) they use an authority given to them by law. It is known that each crime has its own circumstances; therefore, it is wise to give judges a discretional space to take into consideration the circumstances of each case.140
A male First Instance Court judge stated:
Most judges of criminal matters have the tendency to mitigate the penalty of all crimes. However, mitigation in honour crimes is higher. The high tendency of the judicial mitigation in honour killing cases reveals judges’ beliefs that honour victims are criminals.141
Another male Appellate Court judge argued:
Judges always consider the situation of the families of the perpetrators and the victims by applying Article (99). The fact that honour killing is socially justified and glorified encourages judges to apply this article.142
A female Appellate Court judge added:
Applying Article (99) can be the judicial solution when the elements of Article (98) do not exist.143
138 G.2.5. 139 G.1.7. 140 G.1.1. 141 G.1.5. 142 G.2.2. 143 G.2.4. 230
Another male Appellate Court judge justified and supported Article (99) by saying:
Judges apply Article (99) to show sympathy with the family of the victim and the perpetrator and keep its unity.144
Finally, another male Appellate Court judge stated:
I personally applied Article (98) on many occasions, because I believe that most cases of honour killing can be mitigated by applying the provocation excuse. However, if the provocation cannot be proved, applying Article (99) becomes inevitable.145
On the other hand, another group of judges were against the arbitrary application of Article (99). For instance, a female Magistrate Court judge stated:
Applying Article (99) to mitigate the penalty by waiving the personal right of victims’ immediate family members is contradictory to Article (6) of Criminal Procedure Law. This article states that if there is a conflict of interest between the victim and her/his legal representative, Public Prosecution must represent her/him. Accordingly, the conflict of interest can be presumed when the father of the victim waives his personal right to mitigate the penalty of the perpetrator who is also his son.146
Another female Magistrate Court judge argued:
Applying Article (99) constantly in the context of honour killing makes the legal penalties stated in Articles (326) and Article (328) worthless and not deterring.147
A male Magistrate Court judge stated:
Judges of criminal matters make many mistakes while applying Article (99). Some judges falsely believe that applying the judicial mitigating reasons will help the perpetrators to be assimilated into society and live a normal life again.148
Finally, a male High Court judge added:
Applying Article (99) is based on the idea of the humanitarian feelings of the judge who thinks that it is important to take into consideration the interest of the family institution. However, judges forget the fact that by applying Article (99) in an arbitrary way, they facilitate these crimes and encourage their escalation. Murdering a soul and depriving a female of her right to life needs to be faced with a deterring penalty. Despite, the increasing rates of applying Article (99), I still think that the change is possible. Society was able to overcome different barriers that faced women’s emancipation. For instance, women’s
144 G.2.6. 145 G.2.3. 146 G.1.8. 147 G.1.6. 148 G.1.2. 231 work outside their home was a big taboo. However, it is a common matter now. Changing social understanding of honour killing will be a crucial factor that affects the judicial behaviour regarding mitigation.149
These views reflect a high degree of judicial confusion regarding the purposes of Article (99). The conflicting approaches are evident in the judicial practice where judges are actively looking for ways to mitigate the penalty in cases of honour killing. This discussion of selected cases and interview data has documented the “techniques” used by judges to mitigate the penalties based on Article (99). These techniques are:
A) Waiving the Personal Right of Victims’ Immediate Family
The main purposes of the criminal penalty are compensating the aggrieved persons for aggressive acts of the offenders and preserving community rights by protecting the social order.150 In some cases, the aggrieved person may waive her/his personal right of applying the criminal penalty to the offender. Based on this waiver, the criminal penalty is mitigated. However, the offender is still subject to partial punishment to protect the social order from any similar future criminal acts.
In the context of honour killing, the main reason for mitigating a perpetrator’s criminal penalty under Article (99), is the victim’s father waiving his personal right, since he is the most disadvantaged by the killing act. There are some fundamental conflicts of interest because the main purpose of waiving the personal right is settling a dispute between two conflicting parties. An example is a brother killing his sister, and the father waiving his personal right as the father of the victim, since he is also the father of the perpetrator.151
For example, in Case No. 31/2009,152 a brother strangled his sister with an electric wire. When he failed to kill her with the first wire, he obtained another one. He continued choking her until he made sure she was dead. The court held the perpetrator culpable for the killing based on Article (326). However, the penalty was mitigated
149 G.3.1. 150 Al-Halabi, above n 27, 445. 151 The legal reports that documented the cases of honour killing highlight that brothers are the main perpetrators. Al-Ashqar also indicated that most honour killing cases were committed by brothers and fathers. See Al-Ashqar, above n 67, 104. 152 The Palestinian Legal and Judicial Database, Qatel Ala Khalfyat Al-Sharf (17/6/2017)
B) Defending Honour
The Appellate Court has laid down a principle that killing women on honour grounds is a mitigating reason in itself. For instance, in Case No.151/97,154 the court stated that the “disgraceful” behaviour of the victim which was inconsistent with prevailing traditions is a mitigating reason for the act of murder.155
C) The Young Age of the Perpetrators
A female High Court judge stated:
So many families ask adolescents and teenagers to commit the crime. Therefore, they can benefit from the mitigation.156
For instance, in Case No.5/1999,157 the court held the two perpetrators culpable of premeditated murder based on Article (328), but mitigated the penalty based on Article (99) because the perpetrators were teenagers.
D) The Circumstances of the Case
In some cases, the court does not explain its reasons for resorting to mitigation. Giving only general and vague reasons, such as the circumstances of the case. This approach is evident in Case No. 20/2004.158 This lack of judicial reasoning is considered a breach of Article (100) of the Penal Code which requires judges to provide reasons for their
153 G.2.3. 154 In this case, the son of the victim killed his mother after he found out that she was dating a relative. Al- Ashqar, above n 67, 45. 155 Ibid, 46. 156 G.3.2. 157 In this case, two cousins killed their female cousin because of her bad reputation. Al-Ashqar, above n 67, 45. 158 The Palestinian Legal and Judicial Database, Qatel Ala Khalfyat Al-Sharf (17/6/2017)
Judges understand that their discretional authority to apply Article (99) is absolute and unmonitored. However, their authority is monitored by the Court of Cassation if they fail to provide reasons for application.159
E) The Old Age of the Perpetrator
In Case No. 20/2004, the father forced his daughter to drink a bottle of poison after he threatened to kill her with a stick. Then the father strangled her with a rope until she died. The perpetrator was held culpable based on Article (328). However, the penalty was mitigated based on Article (99). The court justified its application of the article based on the old age of the perpetrator.
This discussion of selected cases shows that judges commit technical mistakes while applying mitigating reasons. These mistakes are as follows:
A) Justifying the Mitigation Based on More than One Reason
In Case No. 1/2007,160 the judge justified the application of Article (99) based on the fact that the perpetrator was young, in addition to a waiver of personal rights. This is contradictory to Article (100) which states that the court’s reasoning for mitigation must be justified based solely on one reason.
B) Waiving the Personal Right of non-Eligible Persons
In Case No.130/2006, the personal right was waived by a person who was not the victim’s legal heir. In this case, the husband suffocated his wife and was held culpable based on Article (326). However, the penalty was mitigated based on Article (99) after the sister of the killed wife waived her personal right. It is worthy of mention that the sister was the perpetrator’s first wife, whom he betrayed with the victim. The perpetrator divorced her to marry the victim. The Appellate Court revoked the judgment of the First Instance Court by stating that the ones who have the right to waive their
159 G.1.4. 160 In this case, the brother killed his married sister after he found out that she was having a sexual relationship with a different man. Her brother took the victim to a closed room and hanged her with a rope. The Palestinian Legal and Judicial Database, Qatel Ala Khalfyat Al-Sharf (17/6/2017)
C) Giving Perpetrators Combined Benefit of Articles (98) and (99)
In Case No.79/2005, the perpetrator killed his daughter by poisoning her after he discovered that she had become pregnant outside of marriage. The perpetrator was held culpable based on Article (326). However, the court mitigated the penalty based on both Articles (98) and (99).162
D) Failure to Pursue Prosecution Appeals
In Case No. 44/2003, the brother killed his sister after stabbing her 16 times all over her body. The court held the perpetrator culpable based on Article (328). However, the penalty was mitigated because the mother of the victim (also the mother of the perpetrator) waived her personal right. The court breached Article (99) by mitigating more than half of the penalty. The Public Prosecution did not appeal the judgment. Both the Appellate Court and the Court of Cassation decided that the First Instance Court was wrong. However, they could not change the original judgment because the only appellant was the perpetrator. Therefore, the higher courts had to apply the rule that the appellant should not be harmed by his appeal. 163
E) Interference by the Executive Arm of Government
In Case No. 50/96, the perpetrator stabbed his fiancée and killed her. The court held the perpetrator culpable based on Article (328). The penalty was mitigated based on Article (99) because there was a recommendation from the Palestinian President asking the court to treat the perpetrator the same way as perpetrators of honour killings.164
161 Al-Ashqar, above n 67, 39. 162 The Palestinian Legal and Judicial Database, Qatel Ala Khalfyat Al-Sharf (17/6/2017)
3.2 Changing the Characterization of other Sexual Crimes
To apply the legislative punitive policy, judges can resort to other technical judicial tools, such as changing the characterization of the crime to help the perpetrator to obtain the least severe penalty. Judges resort to this mechanism in other sexual crimes rather than in honour killing. In this context, a male First Instance Court judge stated:
Where there are no legislative tools that enable judges to help the perpetrators of honour-based violence, judges can resort to the technique of changing the characterization of the crime.165
A female Magistrate Court judge added:
Judges characterize the acts of molestation (which have a severe penalty) as acts of public indecency (which have a less severe penalty). That way judges think that they can hit two birds with one stone. They can mitigate the penalty of the perpetrator and protect the victim from suffering social disgrace.166
A male Appellate Court judge expressed a very traditional view by reporting:
In a molestation crime, a dentist was accused of committing oral sex with a 14-year old female patient. The incident took place back in 2002. However, I had to adjudicate the case between 2015 and 2016. I thought about the victim whose age is 29 years old now. Therefore, I thought that if I held the dentist culpable of molestation I would harm the victim’s reputation and ruin her marriage if she is married. Therefore, I decided to change the characterization of the crime to an act of public indecency. Exempting the perpetrator of honour violence from severe penalties helps to show that his act was negligible. This way we can save the victim from struggling with social disgrace and shame. 167
Molestation is a crime that overlaps with rape. Judges can apply provisions of molestation when the elements of the crime of rape (discussed in Chapter Five) are incomplete. However, judicial practice reflects that some judges have exploited this fact by applying provisions of molestation even when the elements of the crime of rape are complete. This is in order to mitigate the rapist’s penalty.168
165 G.1.3. 166 G.1.8. 167 G.2.3. 168 Kamel Al-Said, Al-Jara’em Al-Waqi’a Ala Al-Akhlak w Al-Adab Al-Amma Wal-Osra: Dirasa Tahliliya Moqarana (Amman, Dar Al-Thaqafa Li Nasher w Tawzee’,1995) 53. [Trans: Kamel Al-Said, Crimes against Public Morality and Family: A Comparative Analytical Study (Amman: Dar Al-Thaqfa for Publishing and Distribution, 1995) 53]. 236
As discussed in Chapter Five, if it is proved that the consent of the female whose age is 18 years old or above was expressed as a result of coercion by the blood-related perpetrator (i.e. she was forced to commit the act), this consent is null. Therefore, the act must be characterized as rape based on paragraph 1 of Article (292), while the blood relationship is perceived as an aggravating circumstance based on Article (300). However, judicial practice has shown that some judges may characterize the act of rape as incest due to the lack of differentiation between consent and submission.169
3.3 Narrowing the Circle of Criminal Liability in Cases of Honour Killing
The Penal Code No. (16) of 1960 criminalizes incitement in Article (80). This article defines incitement by stating: “The inciter is the one who urges someone or attempts to urge someone to commit a crime by paying him money or by threatening or deceiving him”. However, in cases of honour killing, incitement is not a punishable act. In these cases, the inciters are the family members who encourage the perpetrator to regain profaned family honour. They can also enjoy the authority of waiving their personal right and mitigating the penalty of the perpetrator. For instance, the father can be the inciter and have the authority of waiving his personal right. For instance, in Case No.18/97, the family convinced their son to kill his sister and waived their personal right, to mitigate the son’s penalty.170
3.4 Loose Interpretation of Self-Defence
The judicial mechanisms to apply the legislative punitive policy can be described as unpredictable and ambiguous. That is, as it was discussed in chapter two that judges used to resort to loose standards in order to justify honour killing, such as Articles (60) and (341) of the Penal Code No. (16) of 1960 which are related to the right of self- defence. In this regard, the Provisional Law No. (7) of 2011 excluded the provisions of the right of self-defence from being used in the context of honour killing. It was also discussed in Chapter Two that the concept of self-defence is dangerous because it justifies the act so that it is no longer criminalized.171 This means that using self-defence
169 Ibid, 266. 170 Al-Ashqar, above n 67, 47. 171 Al-Halabi, above n 27, 160. 237 provisions in the context of honour killing reflects a judicial approach of justifying this act and considering it as legal and licit.172
There can be no justification for connecting self-defence with the crime of adultery. Self-defence cannot be invoked if the husband surprises his wife “red-handed” in an unlawful bed. The crime of adultery cannot warrant killing as a response.173
It is concluded that there is evidence of judicial discrimination. Judicial discrimination can be defined as: judges’ tendency to transform the general and gender-neutral provisions that do not include discriminatory treatment into discriminatory provisions to implement the legislative punitive policy and mitigate or excuse honour violence.
4. Discussion of Qualitative Findings
The qualitative data identified two fundamental issues: the manifestations of honour’s evolution as a sign of loyalty in the judicial process, and the manifestations of judicial cooperation with the legislature to entrench honour violence in the social structure of Palestine.
4.1 The Summary of Findings:
The main findings of the thematic analysis of the interviews with judges are: • Most judges believe that honour is a custom-based concept. • Judges believe that transplanting legislation that does not suit Palestinian society complicates their work. • Judges believe that the governmental attempts at reform are nominal. • Judges recognize that the nature and prevalence of honour is influenced by Palestine’s unique political circumstances, including considerations of gender, class and the competing nationalism projects. • Judges invoke their passive role in the civil law system. • Judges are influenced and restricted by the legislative punitive policy.
The judiciary’s understanding of honour (which suggested that honour is not a religiously immutable concept), their constant reference to the limits of the civil law
172 Abdeen, above n 28, 27. 173 Ibid, 29. 238 legal system, and their justification of the legislative policy are all indicators that judges play a mostly ineffective role in the reform process. However, they were candid in their assessment of the failings of the legislature, most notably in their frank characterization of the abolition of Article (340) as purely symbolic with no practical effect on the situation. On this issue, and in relation to their general reluctance to take responsibility for bringing the CEDAW principles and values into the judicial decision-making process, it becomes clear that a lack of progress toward justice for victims of honour violence is not due to a conflict between legislators and judges. Rather, the lack of progress reflects a wider ambivalence surrounding the problem of honour violence, and about how the value of honour as a sign of loyalty must be maintained, in a context of ongoing political turmoil and uncertainty.
There were a number of other findings that were supported by the analysis of the selected cases. First, there were inconsistencies in the characterization of honour killing. In some cases, it was characterized as murder, and in other cases, as premeditated murder. Secondly, while there is inconsistency in the application of Article (98) in cases of honour killing, the prevalent approach is that Article (98) is available in such cases. Thirdly, such interpretations and practices constitute a form of judicial sex discrimination, the provisions of the Code which are intended to be neutral are transformed into discriminatory provisions which excuse or mitigate gender violence in the form of honour killing.
Examining Palestinian judicial practice demonstrated that the conception of honour as a sign of loyalty still prevails. The judicial discrimination that is evident in the application of Articles (98) and (99) is inconsistent with judges claiming that they have no autonomy in the civil law system. That is, the policy reflected in legislation continues to treat perpetrators of honour killing as less culpable than those who commit the crime of homicide in other circumstances. Judges are not merely passive in enacting this policy. Some are active in finding ways to treat the perpetrators of honour killings as less culpable and deserving of lesser punishment. It is evident that the continuing problem of the inadequacy of the criminal justice system’s response to honour violence is a product of both legislative and judicial factors. The judicial approach of actively excusing the perpetrators of honour killing is embodied in several defective judicial
239 practices, such as justifying mitigation based on more than reason, combining the benefits of Articles (98) and (99), and allowing non-eligible persons to waive their personal rights to mitigate the penalty of the perpetrators.
Additionally, honour as a sign of loyalty prevails in the judicial process through judges’ attitudes toward using the discretion granted to them in Article (99) in all cases, even in those cases where perpetrators can benefit from Article (98). They justify their resort to this approach as a method to protect social traditions. This is consistent with the understanding that honour violence is a tradition-based concept. Applying judicial mitigating reasons under Article (99) has more severe impacts than applying the legislative mitigating excuse according to Article (98). That is, Article (99) is used to mitigate the penalty for premeditated killing when the perpetrator cannot benefit from the provocation defence. Judges’ reliance on judicial precedents that justify honour killing is also contradictory to their claims that their role is passive in the civil law system.
More importantly, judicial practice shows that judges are becoming more experienced in legally justifying honour killing. That is, instead of combating honour violence, they are developing more advanced methods to reason their resort to non-discriminatory provisions, such as Articles (98) and (99). For instance, judges started to apply Article (98) to mitigate penalties for perpetrators of premeditated murder. However, to avoid the future revocation of these judgments based on the fact that the provocation defence cannot be applied in these cases, they developed a new approach, by changing the characterization of honour killing from premeditated murder according to Article (328) to murder according to Article (326). After this judicial approach was subject to criticism, judges become heavily reliant on Article (99) to mitigate the premeditated killing that takes place on honour grounds as discussed above.
It is noteworthy that there is a state of agreement among most judges regarding these matters. Progressive views concerning the mechanisms of reform and the role of the judiciary in combating honour-based violence (which are discussed in Chapter Seven) appear to be held by a minority of judges. In the interviews conducted for this study,
240 these were the judges who had obtained their law degrees from Western universities or had received very advanced judicial training.
4.2 The Intersection of Nationalism Projects and Judicial Practice
To answer the question of how judicial practice is affected by the intersection of specific social divisions within the various nationalism projects, it is essential to show that the gap between the concrete social relations described in Chapter Five and judicial practice is not wide. That is, judges and the legislature are complicit in entrenching honour-based violence, based on the findings that emerged from analyzing the interviews and the related cases. This is in addition to the concrete social relations identified in Chapter Five.
Analysis of the interview data and the selected cases showed that judges referred to the impacts of the three nationalism projects. For instance, they referred to the problem of transplanting legislation and the influence of the legislative punitive policy of the Penal Code No. 16 of 1960. These tools were discussed in Chapter Five as the main tools used by the Jordanian nationalism project to strike a balance between tradition and modernity through the regulation of gender relations. More importantly, the concrete social relations resulting from the intersection of the social divisions within the Jordanian nationalism project suggests that the purpose of honour as a sign of loyalty was more prominent than the modern purpose of striking a balance between tradition and modernity. This outcome was evident in the Jordanian Penal Code and also in the judicial process. This explains the different positions of the Jordanian Supreme Court concerning the application of Article (98) in honour killing cases. The first position of refusing to apply the article to honour killing cases occurred between 1953 and 1964 when the issue of striking a balance between tradition and modernity was a priority. The second position was after 1964, when the Supreme Court supported the approach of applying Article (98) to honour killing cases. This position was developed when the old original purpose of honour was elevated again.
Judges were nationalists themselves,174 so they continued to embody the concrete social relations of the social divisions in the judicial process. For instance, Article (340) is meant to strike a balance between tradition and modernity by borrowing elements
174 Abu Odeh, above n 1, 27. 241 from the concepts of passion and traditional honour. However, the fact that honour as a sign of loyalty prevailed within the ideology of Jordanian nationalism, made the traditional dimension of Article (340) more effective in the judicial process. For instance, as discussed in Chapter Two, the defence provided by Article (340) is closer to the idea of justification than to the idea of the excuse. Based on this legislative approach, the judicial application of the provocation defence of Article (98) is based on the idea of partial justification, since the act of the victim is less socially accepted than the act of the perpetrator. This legislative approach also inspired judges to resort to the loose interpretation of self-defence.
Judges also referred to the impact of the Israeli nationalism project and the role of honour as a tool to demonstrate women’s loyalty. Additionally, most of the interviewed judges were aware of the importance of the class factor within the successive nationalism projects. This can explain why Palestinian judges developed a form of resistance, such as applying Articles (98) and (99) and the other forms of judicial discriminatory mechanisms, to protect the social fabric of their society.
Reviewing the concrete social relations resulting from the intersection of social divisions within the two Palestinian nationalism projects showed the stages of honour’s evolution as a sign of loyalty. It was concluded at the end of Chapter Five, that Palestinian legislative activity was an outcome of an unsuccessful attempt to create a state of syncretism between the minimum partial rights which Palestinian women acquired within the PLO nationalism project and the agenda of the Palestinian state. Creating that syncretism was essential due to the coexistence of the two Palestinian nationalism projects. The impacts of the unfruitful legislative efforts and the state’s priority to prepare the society for future independence were evident in the judicial practice described in this current chapter.
The findings of the empirical research presented in this chapter suggest the judiciary’s awareness of this syncretic process and the absence of serious attempts at reform. Thematic analysis shows that the judges believed that the Palestinian Executive Authority does not have a serious will to work towards reform. In this regard, the qualitative data highlighted the nominal or “token gesture” that was embodied in moves like abolishing Article (340) and acceding to the CEDAW. However, the Palestinian judiciary played a complementary role to the legislature. This was evident through 242 examining the interviews and case analysis. Judges are not only applying the legislative punitive policy faithfully, but they are also creating different judicial mechanisms to apply that policy. Moreover, the judiciary recognized other international conventions and rejected opportunities to apply the CEDAW. The end result is that the concept of honour as a sign of loyalty prevails in the judicial process.
5. Conclusion
This chapter has highlighted judicial attitudes in the area of honour-based violence and has drawn attention to the shortcomings of judicial practice and the prevalence of honour as a sign of loyalty.
The concrete social relations resulting from the intersection of the related social divisions highlighted in Chapter Five helped to understand the stages of honour’s evolution as a sign of loyalty that persists in the legislative process. Based on these concrete social relations and the findings of the qualitative research in this chapter, it is concluded that honour as a sign of loyalty also prevails in the judicial process.
This thesis also argues that the judiciary is complicit with the legislature in entrenching honour violence as a feature of Palestinian society. Judges have developed their own mechanisms for applying the legislative punitive policy. In other words, judicial discrimination complements legislative discrimination. This conclusion refutes the argument that legislators created a state of balance between tradition and modernity, while the judiciary interrupted this balance by bringing rigid traditions into their decision-making. On the contrary, legislators and judges are not in conflict; both play a part in the continued prevalence of the honour concept as a sign of loyalty. This conclusion also refutes judges’ claim that their role is a passive one within the civil legal system.
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Chapter Seven
Legislative and Judicial Reform for Combating Honour-based Violence
1. Introduction
As discussed in Chapter One, legal reform can be an efficient tool to debilitate patriarchy.1 The main strategic goal of the Palestinian Strategic Plan for Combating Violence against Women, from 2011 to 2019 is enhancing the legal framework and institutional mechanisms to protect women from gender-based violence.2 The main Palestinian state policies designed to combat gender-based violence, including honour- based violence, come under this strategic goal. The major policy change identified in the strategic plan is developing and modifying legislation to protect Palestinian women from violence. However, the plan provides for general targets to reduce gender-based violence without providing specific details on what legal reforms are required. This chapter aims to fill this gap, by offering a detailed vision for legal reform.
The United Nations Development Program (UNDP) defines access to justice as “the ability of people to seek and obtain a remedy to injustice through formal or informal institutions of justice, and in conformity with human rights standards”.3 It also delineates the stages of the process of ensuring access to justice. The first stage is the legal protection of victims provided by progressive legal provisions. The second stage is the legal aid or state funding to ensure that people have access to legal representation. The third stage is the adjudication process, and the fourth stage is monitoring the performance of the legal bodies.4
These UNDP guidelines, and the main findings and arguments of this thesis, support the position advanced in this chapter that both legislative and judicial reforms are required for effective reform to be made. In other words, legislative and judicial reform
1 Valentine M. Moghadam, “Patriarchy in Transition: Women and the Changing Family in the Middle East” (2004) 35(2) Journal of Comparative Family Studies 137, 145. 2 Al-Itihad Al-Am Li Mar’a Al-Falestinya, Al- Kota Al-Istratejya Li Mokafhet Al-Onof Deda Al-Mar’a men 2011 ela 2019, 46-47 (16/4/2016)
2. Legislative-based Reform
All the interviewed judges for this study agreed that the process of reform for combating honour-based violence begins with a process of legal reform. For instance, a female Appellate Court judge stated:
The extensive reform process begins with legislative reform. This legislative reform will lead to social reform.5
A male Magistrate Court judge added:
The only way for social reform is legal reform. In our society, the obligatory force of law can lead to a change of social values.6
Another male Magistrate Court judge argued:
The only way to control honour violence is law. I can say that judges in the civil law system are led by the legislature. So, it is the responsibility of legislators to design a modern Penal Code with a progressive legislative vision and all judges will be ready to work according to it with no opposition. I will give you a recent example regarding judges’ submission to legislative changes. The new Juvenile Justice Law was issued without involving judges in the process of its drafting. However, judges are applying it despite their disagreement with many of its provisions.7
A male Appellate Court judge stated:
I believe that social change is a hopeless case due to the growth of rigid extremism. The only way to create change is issuing a new Penal Code with a progressive vision.8
Another male Appellate Court judge stated:
As a judge, I can claim that the outdated Penal Code is a burden on us. I really hope that Palestinians will have their own Penal Code one day in which women are given all their rights.9
5 G.2.1. 6 G.1.2. 7 G.1.4. 8 G.2.2. 9 G.2.6. 245
A female High Court judge argued:
Changing legal provisions for the benefit of women will help to control the increasing rates of the crimes against women. To establish social reform, I believe that the penalties of honour crimes must be aggravated, because of the easy access of the perpetrator to the victim due to their blood relationship. This is a valid reason for aggravated penalties in criminal law. We also need to train judges to apply these aggravated penalties and think about honour crimes from a human rights perspective instead of thinking about them from a purely professional perspective.10
A female Appellate Court judge added:
To create the basic infrastructure for legal reform to combat honour-based violence, the philosophy of the Penal Code regarding sexual crimes must be changed.11
Finally, another male Appellate Court judge stated:
In the civil law legal system, legislative reform leads to judicial reform. Additionally, legal reform leads to social reform. That is, most people think that honour crimes are not legally punishable. So, applying aggravated deterring penalties will make a drastic cultural change.12
However, none of the interviewed judges outlined a vision of legislative reform. This section recommends legislative change, based on the analysis of the unique aspects of the Palestinian legislative context explained in Chapters Four and Five.
As discussed in those chapters, honour-based violence as a sign of loyalty went through several distinct phases of evolution in Palestine through the intersection of gender relations with class and age within different nationalism projects. Accordingly, legislative reform must take into account analysis of the surrounding factors that shaped the provisions regarding honour-based violence. The legislative mechanisms for combating honour as a sign of loyalty are:
2.1 The Penal Code
The Jordanian Penal Code No. (16) of 1960 that is currently applied in the West Bank is the outcome of the post-colonial state nationalism project. As discussed in Chapter Five, nationalists attempted to strike a balance between tradition and modernity. However, honour as a sign of loyalty became an indispensable principle in the newly established state. In other words, the Jordanian legislature faced the dilemma of
10 G.3.2. 11 G.2.1. 12 G.2.3. 246 maintaining its own cultural heritage and laying down a legislative framework which was based on human rights. Gender relations were used as a tool to maintain that balance. In that era, protecting traditions was a necessity to immunize society from the invasion of post-colonial feminism which was based on uniting women’s struggle and confirming their universal sisterhood, while acknowledging their diverse cultural surroundings.13
On the other hand, it also was discussed in Chapter Five that the new draft of the Palestinian Penal Code of 2011 is the product of the interaction between concepts of the liberation movement nationalism project and concepts of the state post-conflict nationalism project. Women tend to temporarily gain better social status in revolutions, but standard gender norms are swiftly re-applied in the post-conflict stage.14 This means that the partial privileges which women acquired under liberation movement nationalism were diminished by the political leaders of Palestinian state nationalism. After the armed conflict ceased, political leaders attempted to push back women participants in the resistance process to the private sphere.
The transformation from the state of fraternity between the two gender groups during the armed conflict to a state characterized by constant efforts to normalize life after war, in addition to the impact of the applied Penal Code No. (16) of 1960 (the product of the post-colonial era), produced a hybrid of legal provisions pertaining to honour violence and sexual crimes in the draft. Upon reflection, it is clear that the final outcome of the intersection between the different social divisions within the successive nationalism projects is the perpetuation of honour as a sign of loyalty and the elevation of its role within the Palestinian social structure.15
The political agenda of each nationalism project was reflected in the legislative punitive policies of the two Penal Codes. Accordingly, to combat honour violence in the legislative process, it is important to put the currently applied Penal Code and the new Palestinian draft of the Penal Code aside. The main question to be asked in the context of drafting a progressive Penal Code is: What is the value of honour in this new code?
13 Rosemarie Tong, Feminist Thought: A Comprehensive Introduction (Washington: West View Press, 1989) 223. 14 For more information see Lori Handrahan, “Conflict, Gender, Ethnicity and Post-Conflict Reconstruction” (2004) 35(4) Security Dialogue 429, 438-440. 15 For an in-depth discussion of the connection between honour-based violence and the nationalism projects, review sections 2.3.2, 3.1.2, 3.2 and 4 of Chapter Five of this thesis. 247
Answering this question is crucial to the process of drafting the new provisions on sexual crimes.
There are more progressive approaches than drafting legal provisions that legitimize killing women on honour grounds and fluctuate between the concept of passion and honour (discussed in Chapter Two).
The first approach is drafting gender-neutral provisions that address both gender groups, based on the fundamental principle that all citizens are equal before the law.16 However, this approach is a double-edged sword because of judges’ tendency to interpret gender-neutral provisions and transform them into gender-biased provisions (as discussed in Chapter Six). This is in addition to the problems of ‘sameness’, discussed in Chapter Three. The second promising approach is identifying the killing of women on honour grounds as an aggravating circumstance. The third approach is identifying special provisions for killing women, including killing women on honour grounds, as a unique form of homicide.17
Based on the discussion in Chapter Five regarding the impact of intersectionality on Palestinian young women who belong to the poor and lower-middle classes, it is important to adopt either the second or third approach. This is to provide strict protections for women, who are disadvantaged by the constant evolution of honour as a sign of loyalty within the ideologies of the different nationalism projects.
To protect this underprivileged group, the legislative punitive policy concerning other sexual crimes (analysed in Chapter Five) must be changed. In other words, the future Penal Code must consider the fundamental loopholes of the Penal Code No. (16) of 1960 and the Palestinian draft of the Penal Code of 2011. The main objectives that must be kept in mind in order to combat honour as a sign of loyalty in the legislative process are: focusing on protecting the rights of victims of sexual crimes rather than elevating the importance of protecting the Palestinian social fabric and the institution of the family; re-considering the partial legal capacity of victims of rape crimes, identifying the age of criminal liability and providing strict protection to victims who do not enjoy full legal capacity; identifying minimum aggravated penalties; introducing more
16 “Killing Women based on a Sexual Motive: Promising Practices, Challenges and Practical Recommendations” (A Report of the UN’s Experts Team Concerning Killing Women, Bangkok, 11-13 November 2014) 8-9. 17 Ibid. 248 aggravating circumstances; criminalizing the attempt of molestation in the context of incest crimes; and expanding the circle of relatives who are subject to these aggravating circumstances if they commit sexual crimes.
Additionally, to achieve the main purpose of the aggravating circumstances, they must be applied to the perpetrators regardless of their knowledge of the presence of these circumstances. Legislators must also be consistent when they set the pillars of the legislative punitive policy. That is, the penalties for sexual crimes must be deterrent, and no sexual abuse should be viewed as trivial so as to mitigate penalties for male perpetrators. Thus, the approach of marginalizing sexual abuses in Articles (283) and (304) of the Penal Code No. (16) of 1960 must be re-evaluated.
Moreover, the future Penal Code must avoid the discriminatory legal penalties for the same criminal act in crimes of adultery, based on gender. The Penal Code must also clarify its position on consent and submission in crimes of incest and avoid gender- neutral legal provisions in cases of molestation since women are more exposed to the danger of molestation than men. Finally, incitement in sexual crimes must be severely punished, and the statute of limitations must also be abolished, so that the victims of sexual abuse can sue perpetrators at any stage.
2.2 The Future Palestinian Constitution: The Design of the Future Gender- Oriented Palestinian Constitution
As discussed in Chapter Five, the draft of the future Palestinian Constitution reflects the classic principles of the post-conflict state structure in which gender issues are regarded as trivial. Since the Constitution is the supreme law of the land, the task of drafting a new progressive Penal Code is more likely to be achieved if it is drafted under the umbrella of a gender-oriented Constitution.
The main question that must be asked in the context of combating violence against women and honour violence in the future constitution is: How can gender equality be made central to the constitutional drafting process?
The design process of gender-oriented Constitutions for conflict and post-conflict societies differs from this process in traditional cases. In conflict and post-conflict
249
Constitutions, the provision of rights is crucial. However, the drafters of the new Constitution must take seven key points into consideration.18
The first is the gender-neutral definition of the citizen and the shape of the new government as well as women’s representations and participation in the Constitutional Court.19 The second is the issue of Islamic shari’a law as a formal source of legislation. This clause must be restricted and monitored by stating that personal status law and Islamic shari’a must be consistent with human rights standards.20 The third issue is that the designs of most draft Constitutions of post-conflict state projects are based on the Western model in which the civil and political rights of gender-neutral citizens have a prominent status. This makes their Constitutions short-sighted since they cannot guarantee substantive protection to their citizens through guaranteeing social, economic and cultural rights.21 The fourth issue that must be considered is that the Constitution must highlight the reasons for the historical gender exclusion.22 The fifth issue is regulating reproduction rights especially in light of the fact that pregnancies, childbirth and the trauma of rape have important impacts on the evolution of honour as a sign of loyalty (as discussed in Chapter Five).23 The sixth issue is that the use of gendered terminology in the drafting language is absolutely essential. This can be achieved by using “women” and “men” throughout the document, and by eliminating the use of the pronoun “he” to refer to the members of the two gender groups.24 The final issue that must be taken into consideration is identifying the role of the Independent Commission for Human Rights in monitoring the application of the principle of gender equality within governmental bodies.
2.3 The Criminal Procedures Law and the Other Legal Helping Tools
This thesis focuses on the role of judges, not other participants in the criminal courts. However, it is important to focus on the legal provisions that overlap and affect the judicial process since procedural law complements substantive law.
18 Dina Francesca Haynes and Fionnuala Ni Aolain et al, “Gendering Constitutional Design in Post- Conflict Societies” (2011) 17 William and Marry Journal of Woman and the Law 509, 533. 19 Ibid. 20 Hallie Ludsin, “Women and the Draft Constitution of Palestine” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2011) 141. 21 Haynes et al, above n 18, 534. 22 Ibid, 535. 23 Ibid. 24 Ludsin, above n 20, 233. 250
In light of the formation of the specialized Public Prosecution for combating violence against women (discussed in the next section), it is essential to expand the authority of Palestinian Public Prosecutors in Criminal Procedures Law. With this expansion, the Criminal Procedures Law and Public Prosecution can be helping tools in assisting the Penal Code to penetrate the private sphere of the family. Expanding the jurisdiction of Public Prosecutors involves ensuring that legal prosecution in cases of violence against women is not contingent upon the victims filling a complaint and continues even if she withdraws her complaint.25 Moreover, Public Prosecutors must be able to take some preventive measures to ensure a complainant’s safety, such as putting suspects under house arrest, and arresting and detaining persons suspected of committing violence with no memorandum of arrest. This is in addition to giving them the right to ask judges to issue prompt judgments in urgent cases in the absence of the defendant. Finally, they must be able to refer all cases of violence against women to the courts.
In addition to the role of the Criminal Procedures Law and the Public Prosecution, there are other legal tools that can help the Penal Code to penetrate the private sphere of the family, such as the Legal Assistance Law for Women. The importance of this law stems from the fact that most women cannot gain access to justice because of poverty.26 However, in order to guarantee its benefits, it is essential that women know of its existence. The Law of Protecting Family from Violence and the Forensic Medicine Law can also help the Penal Code to penetrate the private sphere of the family in the cases of honour-based violence.
3. Judicial Reform
As discussed in Chapter Six, judges invoke the civil legal system to justify their marginal role in the legal reform process. However, in light of the argument that the legislature and judiciary are complicit in producing an inadequate response to honour violence, the suggested legislative reform is meaningless if it is not combined with a comprehensive process of judicial reform. Accordingly, this section discusses the future judicial reform process that must precede and go hand-in-hand with legislative reform.
25 “Killing Women based on a Sexual Motive: Promising Practices, Challenges and Practical Recommendations” (A Report of The UN’s Experts Team Concerning Killing Women, Bangkok, 11-13 November 2014) 16-17. 26 “Access Denied, Palestinian Women’s Access to Justice in the Occupied West Bank” (A Report of UN Women, 2014) 10. 251
In other words, judicial reform revolves around filling the legislative gaps and developing the judicial process, so it can assimilate future reforms.
It is worthy of note that the interviews with judges enriched the suggestions of judicial reform. Some judges, mainly those who received a Western legal education, have an unprecedented, progressive vision of judicial reform in Palestine.
3.1 The Role of the Court of Cassation in the Legal Reform Process
The problems resulting from the inconsistency of judicial practice highlighted in Chapter Six requires intervention by the Court of Cassation, to lead in the process of reforming the Palestinian judiciary. The Court of Cassation can resolve this state of inconsistency through the following mechanisms:
3.1.1 The Judicial Precedents: Applying Gender-Neutral Legal Provisions to Entrench Gender Equality
Even before a progressive Penal Code is introduced, there are some actions that the judiciary can take to improve the courts’ response to honour violence. As discussed in Chapter Six, the legal system in Palestine is a civil legal system which is highly reliant on legal codification, while legal precedents are considered a non-binding guiding source of law. However, in the context of honour violence, judges are highly reliant on judicial precedents to justify their approach.27 For example, the practice of transforming Articles (98) and (99) from general, non-discriminatory provisions into private provisions is supported by many judicial precedents.28 For example, a male Appellate Court judge stated:
Applying Article (99) to mitigate the penalty of the perpetrator becomes a well-known judicial approach in honour cases that is justified by many precedents. This transforms the discretional authority into a compulsory practice.29
27 Lotfya Sihweel, “Nisa’ Mostabaha Arwahan: Qtal El-Nisa’ Fi Falsteen Fi 2011 w 2012” (Taqreer Markaz Al-Mar’a Li Mos’da Al-Qanonya Wal Irshad, 2013) 23. [Trans: Lotfya Sihweel, “Right of Life Denied: Killing of Women in Palestine in 2011 and 2012” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2013) 23]. 28 Ibid. 29 G.2.3. 252
It is important to mention that this progressive approach of involving the Court of Cassation in playing a leading role in combating honour violence is now applied in some neighbouring countries such as Jordan and Egypt. This suggests that the modern transplantation of this practice from Jordan and Egypt is better than the old transplantation process of the Penal Code No. (16) of 1960 which was criticized in Chapter Six.
An interviewed female Appellate Court judge offered some examples of this pioneering approach in action. She stated that viewing the judgements of the Jordanian Supreme Court shows that there is hope for the generation of legal reform to combat honour- based violence. Some Jordanian judges have a different, creative approach to dealing with cases of honour-based violence. For instance, in a case where a 22-year-old female had a sexual relationship with a 16-year-old minor, the family of the minor filed a complaint against the female perpetrator. The defendant female invoked Article (308) which gives the rapist the option of marrying the victim in order to evade legal prosecution. The First Instance Court declined the female’s claim. It reasoned its judgment by explaining that Article (308) is related to the act of rape, while the criminal act that was committed by the female defendant cannot be classified as rape. The Appellate Court agreed with the opinion of the First Instance Court in the matter. However, the Jordanian Supreme Court had a different opinion, based on the fact that Article (308) should not contradict the constitutional provision that states all citizen are equals before the rule of law regardless of their sex, religion and race. It also invoked the rules of the CEDAW and the state’s responsibility to abolish all discriminatory provisions to justify its different approach.30
The judge gave other three examples:
Example 1:
In Jordan, a Christian father killed his daughter who had converted to another religion. The First Instance Court held the father culpable of murder. However, the Appellate Court mitigated the penalty and justified its approach by stating that the father’s action came as the result of “the disgraceful” behaviour of the victim. And because the victim had no relatives the court had the authority to waive the personal right based on the rule that “the court represents whoever does not have legal representation”. The Supreme Court revocated the judgment of the Appellate Court. In its reasoning, the Supreme Court
30 G.2.4. 253 assumed that the Appellate Court would have a different approach if the daughter killed her father for the same reason which was conversion to another religion.31
Example 2:
In another case, a married woman accused her husband of molestation. That is, the lady left her house to go to her parents’ house. The husband followed her there and attempted to have sex with her. The First Instance Court rejected the claim of the wife based on the fact that there is no such thing as a crime of molestation between married couples. However, the Supreme Court had a dissenting opinion in the matter. The court stated that the crime of molestation cannot exist between a married couple inside their own house. However, the crime of molestation exists if the husband committed the acts of molestation outside their own house.32
Example 3 (from Egypt):
A female killed and burnt her father who used to rape her constantly. The father also urged the victim to get married and divorced for three times to get her dowry. The Court of Cassation sympathized with the perpetrator and gave her a mitigating excuse. The court reasoned its judgment by stating that the long history of her victimization and the outrageous acts of her father can be mitigating excuses.33
Finally, the same judge commented on these precedents by saying:
The precedents of the Jordanian Supreme Court can be helpful tools toward change. These precedents challenged the legislative punitive policy that is based on depriving women of their basic rights. We should not forget that the Penal Code was issued in 1960 when empowering women was nothing more than a dream. We are living in the 21st century. Therefore, that outdated policy should have no place in our legal system. Judges should start thinking outside the box and use the available tools to create change for the future.34
A male High Court judge added:
The judges of the High Court must be role models for judges in the lower courts. I believe that judges of the lower courts are more encouraged to apply international standards if they find that the High Courts’ judges are applying them.35
In light of the current state of judicial inconsistency discussed earlier in Chapter Six, the precedents of the Court of Cassation should cover these fundamental areas:
31 Ibid. 32 Ibid. 33 Ibid. 34 Ibid. 35 G.3.4. 254
1. Defining the three crucial elements of Article (98). In particular, the extreme state of rage or the fit of fury needs to be accurately defined in a way that is beyond any doubt.
2. Clarifying the limits of judicial discretion for using Article (99). These precedents must clarify the criteria for using discretionary authority and its limits. In other words, the precedents must direct judges to use their discretion to support victims instead of supporting criminals. Additionally, precedents must encourage judges to incorporate human rights standards into their judicial practice through their discretionary authority, instead of doing their work in an automatic way.
3. Interpreting and applying the non-discriminatory provisions to create a culture of human rights within the judiciary. That is, many provisions which are used against women can be described as gender-neutral articles. However, judicial practice transforms these articles into discriminatory ones. The judiciary can also use discriminatory articles to create a state of gender equality, based on the key constitutional provision which states that all citizens are equal before the rule of law. This approach can be justified, based on the concept of the supremacy of constitutional provisions over other legal provisions, such as legislations and regulations.
4. Defining the age of legal capacity in criminal matters.
5. Differentiating between consent and submission.
6. Making a clear distinction between justifications and excuses.
3.1.2 Suggesting Modification of the Legislation
Judges of the Court of Cassation can play another crucial role in the legal reform process. As discussed in Chapter Six, the Palestinian Court of Cassation played a key role in adjusting local statutes and making them consistent with the international standards while adjudicating in Appeal No. 56/2014.36 Moreover, based on their extensive judicial experience, High Court judges can suggest modifications to existing legislation. A male High Court judge stated:
36 For details see Chapter Six. 255
High Court judges in Jordan encouraged the legislature to change Article (308) that gave the rapist the right to marry his victim.37
A female Appellate Court judge added:
The Jordanian Parliament managed to abolish Article (308) based on the recommendation of the Royal Committee that was founded to study the harmful impacts of the provision. This committee consisted mainly of Supreme Court judges. The main incident that encouraged the Supreme Court judges to recommend abolishing Article (308) was the story of a Syrian woman who lives in a refugee camp in Jordan. The Syrian woman met a Jordanian man who deceived and raped her with his other three friends. The rapists were marrying and divorcing her successively to evade legal prosecution. The father of the female approved these successive marriages and divorces because he benefited from her dowries. The outcome was holding the four rapists culpable of rape and holding the father culpable of the crime of human trafficking. Additionally, Article (308) was finally abolished.38
It is worth noting that Article (308) of the Penal No. (16) of 1960 was also abolished in Palestine by the Provisional Law No. (5) of 2018.39 However, the approach discussed above would be helpful in abolishing other gender-biased provisions, mainly the provisions that were discussed in Chapter Five of this thesis.
3.1.3 Monitoring the Performance of Lower Court Judges
The judges of the Court of Cassation can play a crucial role in the legal reform process by reviewing and monitoring the judgments of the lower courts. These judges perform a dual task of reviewing the judgements of the lower courts and revoking decisions that are not consistent with international human rights standards.40 Accordingly, the judges of the Court of Cassation are responsible for monitoring the application of Articles (98) and (99) of the Penal Code to ensure that the judicial application of these articles is consistent with law and international human rights standards.
Not only can the Court of Cassation monitor the judgments of the lower courts, but it can also monitor their performance during the litigation process. For instance, the Jordanian Supreme Court founded a tracking system that enables its judges to direct and
37 G.3.4. 38 G.2.4. 39 This statute was issued in the Palestinian Gazette in Volume No.141 on 25/3/2018. 40 Ahmad Al-Ashqar, “Qatal Al-Nisa’ Ala Kalfyat Al-Sharaf: Dirasa Tahlilya Li Al-Tashree’ w Ahkam Al-Qada” (Taqreer Maktab Al-Mofwad Al-Sami La Hoqook Al-Ensan, 2014) 39. [Trans: Ahmad Al- Ashqar, “Murder of Women in Palestine under the Pretext of Honour: Legislation and Jurisprudence Analytical Study” (A Report of The United Nations Human Rights Office of the High Commissioner, 2014) 39]. 256 supervise the performance of lower courts’ judges while they adjudicate cases of honour-based violence.41
3.2 The Impacts of Legal Education
In the interview process, judges were asked about the impact of their legal education on shaping their understanding of gender equality and their roles in the reform process.
3.2.1 University Education
Most of the judges interviewed agreed that their first law degree did not contribute much to their understanding of gender equality. This is because the nature of legal education in Arab countries does not enhance students’ legal critical thinking skills. Instead, it is based on justifying current legislation. On the other hand, judges who had the chance to pursue higher legal education, especially in the West, are leading movement for change. For instance, it was discussed earlier in this chapter that judges who had received their higher education in Sweden, Italy, Ukraine and France had the most progressive views on the concept of gender equality.
A female Appellate judge stated:
Article (340) was marketed by our professors in law school. Unfortunately, professors in law schools do not highlight the problems with certain legal provisions. They teach us to apply legal texts regardless of their problems and defects. I can claim that in my bachelor’s degree I did not study anything related to human rights and gender equality.42
A male First Instance Court judge added:
I personally did not know anything about gender equality while I was studying my bachelor’s degree in law. However, pursuing higher degrees overseas expanded my horizons and changed my views.43
Based on this discussion, teaching critical thinking skills and gender studies to law students in bachelor’s degrees, are two essential elements for preparing future judges who are fully aware of their responsibility for entrenching a culture of gender equality in the judicial process.
41 G.3.4. 42 G.2.1. 43 G.1.3. 257
3.2.2 Judicial Training
Judicial training in Palestine has two levels, level one: initial training for newly appointed judges, and level two: continuous training for all judges during every stage of their judicial careers.44 However, most interviewed judges complained about the lack of judicial training on human rights and gender equality matters. They compared their poor training on gender equality matters with the extensive training provided to the Public Prosecution. A female Appellate Court judge stated:
Judicial training is very important to fill the gaps of academic legal education. Judges find it beneficial to be trained by other judges and learn from their experience. However, judicial training in matters of gender equality is very weak.45
A male First Instance Court judge added:
Judicial training is the main tool for changing the mentality of judges. However, judicial training curricula are very poor. Moreover, they are not connected to human rights standards and gender equality. More importantly, the trainers of the Judicial Training Institute are unqualified to train judges on gender equality matters. I can say that the administration of the Judicial Training Institute does not believe that gender equality is a valid topic for judicial training.46
A male Magistrate Court judge stated:
The Palestinian Public Prosecution was subject to extensive training on the topic of gender equality. This impacted their performance in the cases of honour violence positively.47 Additionally, the extensive
44 Ma’had Al-Tadreeb Al-Qada’i, Baramej Al-Tadreeb (15/11/2017)
The same judge added:
Judges need training to deal with gender-sensitive cases, because judges need to get technical experience that is difficult to acquire during the years of legal study. I will give you an example: electronic crimes. I had to go through extensive trainings to be able to deal with these crimes. I believe the same thing applies to matters of gender equality.49
Consequently, some judges lack basic knowledge regarding gender equality, and so it is to be expected that their judgements may lack a human rights perspective. For instance, a male Magistrate Court judge stated:
I understand gender equality in the judicial process as appointing more female judges within the Palestinian judiciary.50
It is worthy of mention that most judges in the sample welcome the idea of receiving extensive training in gender equality. However, a minority have a different view. A male Magistrate Court judge stated that:
Judicial training on gender equality matters is a way to spend funds from foreign donations.51
A male Appellate Court judge added:
Judicial training on gender equality matters is an attempt to apply donors’ agendas in Palestinian Judicial practice. Undoubtedly, this jeopardizes the judicial independence of the Palestinian judiciary.52
A female High Court judge also stated:
was planned. The Public Prosecution also invoked the fact that the husband did not officially complain about his wife, accusing her of committing adultery. It also highlighted the conflict of interest when the court used Article (99). That is, Public Prosecution questioned the authority of the perpetrator’s father to waive his personal right because he is the custodian of the perpetrator’s children. Accordingly, the Appellate Court changed the characterization of the crime into premeditated murder based on Article (328) of the Penal Code, so the perpetrator cannot benefit from the mitigation provided by Article (98). The case is still being heard in Court of Cassation. G.2.4, G.2.1, G.3.3. 48 G.1.4. 49 Ibid. 50 G.1.2. 51 Ibid. 52 G.2.3. 259
Judges of the Court of Cassation are not supposed to be subject to judicial training on matters of gender equality. This is because these judges should be trainers and not trainees.53
Finally, it is important to highlight the successful Jordanian experience of judicial training on matters of gender equality and the effect of establishing a specialized court for adjudicating cases of violence against women including honour violence. A male High Court judge stated:
The topics of human rights, international treaties, gender equality, and gender-based violence are compulsory topics of judicial training in Jordan. Judicial promotion is connected to passing this training. For example, in one incident, there was a Jordanian judge who was demoted because he reasoned the mitigation by stating that “the disgraceful behaviour of the victim is the reason for mitigation”. Based on these training programs, a questionnaire was distributed among judges who were opened to receiving more extensive training. That group of judges consists of the judges of the specialized court of violence against women.54
In judicial training it is important to focus on changing the mentality of judges through highlighting the impacts of the different nationalism projects in Palestine and the historical evolution of the concept of honour. In other words, it is important to explain why honour is still considered as a sign of loyalty in the 21st century, and how judges are working as agents for the successive nationalism projects, intentionally or unintentionally. This is different from the classic approach of training judges on purely technical matters without paying much attention to the philosophy behind the legislation. Without this theoretical training, any legislative change is meaningless. For instance, Article (98) is still used in cases of honour killing, in spite of the fact that the use of this article was restricted by the Provisional Law No. (7) of 2011. It is most likely that the same thing will happen with the Provisional Law No. (5) of 2018, which narrows the mandate of Article (99) by excluding the cases of violence against women and children, if this legal change is not accompanied by theoretical training to change the mentality of judges.
3.2.3 The High Judicial Council and Public Prosecution’s Gender Units/The Specialized Court
Chapter Six discussed the fact that the High Judicial Council is an administrative body that was established in 2000 to manage the court system and the judicial process in
53 G.3.3. 54 G.3.4. 260
Palestine. The Gender Unit was established within the Palestinian High Judicial Council in 2014. This unit initially consisted of 14 judges representing all levels of courts and has now been expanded to 28 judges. The unit’s main task is to work toward incorporating principles of gender equality into the judicial process.55 A member of the Gender Unit added:
The judicial training programs on matters of gender equality are weak. The judicial training will be more effective after the judicial gender unit becomes more effective.56
The judiciary’s Gender Unit is standing still. In this regard, a female Magistrate Court judge who is a member of the Gender Unit reported that:
The Gender Unit in the High Judicial Council is facing severe challenges. For instance, there is no accumulative experience in the training process. Additionally, many judges believe that female victims are offenders. There are no criteria or indictors to measure the progress of the Gender Unit. And the main problem is judges’ understanding of their role as a mechanical role of applying legal provisions without taking into consideration international standards and human rights. The last problem is the limited budget.57
Comparing the judicial experience with that of the Public Prosecution, shows that the Public Prosecution has made more tangible progress. In 2013, a group of Public Prosecutors were given extensive training on gender topics, conducted by UN Women. At the end of the training process, questionnaires were distributed to evaluate their understanding of gender equality. The Prosecutors also had to go through three sessions, in which they were given extreme cases of violence, to examine the way in which they would deal with them. Accordingly, 14 Public Prosecutors were chosen to form a Gender Unit in the Palestinian Public Prosecution in 2016. In other words, the unit emerged from the extensive training of Public Prosecutors.58 The Prosecutors of the Gender Unit also formed the first Specialized Prosecution for Combating Violence against Women, the first of its kind in the Arab world. It takes responsibility for cases
55 G.1.5. 56 Ibid. 57 G.1.9. 58 G.2.4. Prosecutors were trained on the following topics: The techniques of hearing the victims of violence, case review, case management, legal drafting, litigation, gender-sensitive media, the legal characterization of the argumentative and dialectic cases, and finally, enhancing partnerships with other institutions concerned with protecting women victims of violence. Ibid. 261 of violence against women from when they start as complaints to police until they reach to the final stage of the litigation process.59
In the same way, the natural progression of the Gender Unit in the High Judicial Council should lead to the establishment of a specialized court for gender violence that can handle cases of honour violence more professionally, and work side-by-side with the Specialized Prosecution for Combating Violence against Women. This specialized court would represent a first-degree court with First Instance Court judges. These judges would already be members of the Gender Unit and have undergone extensive practical and theoretical training in gender-sensitive issues. The judgments of this court would be challenged by those judges of the Appellate Court and the Court of Cassation who are also members of the Gender Unit. In other words, the cases of violence against women would only be heard by specialized judges at every level of the court system.60
After the case is referred to the specialized court by the Specialized Public Prosecution for combating violence against women, and before the official hearing takes place, the file would have to be evaluated by a specialized judge, a clergy person, and a counsellor. These people could also be present in the court session which would be held with three specialized judges.
3.3 The Judicial Complementary Role of Supporting Legislative Reform
In spite of judges’ claims that they have very a limited role in the law-making process in the civil legal system, they can play a prominent legislative role.
3.3.1 The Judicial Role in the Law-Making Process
In addition to the Court of Cassation’s role of suggesting changes to legislative provisions, it is also essential to involve judges from different jurisdictions in the law- making process. To do this, the Palestinian High Judicial Council established a judicial body called the “Judges’ Club”, consisting of judges representing all levels of courts. The aim of this body is to enhance the judicial contribution to the process of suggesting and drafting law reform proposals. However, this judicial body has been marginalized
59 Al-Niyaba Al-Ama Al-Falstinya, Niyabat Mokfahat Al-Onof Deda Al-Mar’a (1/12/2017)
3.3.2 The Constitutional Court’s Role of Clarifying the Obligatory Force of the International Conventions in the Palestinian Domestic Legal System
Interviewed judges referred to the importance of identifying the status of the CEDAW in the Palestinian local legal system and referred to the Jordanian experience. Jordan has made a quantum leap in the incorporation of gender equality principles into the Penal Code compared to Palestine. The Jordanian achievement began with clarifying the status of the international standards in the local legal system in its Constitution. That is, the international standards enjoy automatic enforcement within the Jordanian legal system, and Jordanian legislation has the same obligatory force as the international standards. In the case of contradiction between the two rules, priority is given to the subsequent legal rule. In other words, the subsequent rule supersedes the older one.62
In light of the Palestinian legislative vacuum concerning the legal value of the international standards within the Palestinian local legal system, a female Appellate Court judge interviewed for this study suggested a solution for incorporating the CEDAW into the local Palestinian legal system. She stated that most judges claim that the CEDAW lacks obligatory force within the Palestinian legal system because it did not go through local Palestinian legislative channels. On the other hand, the Palestinian Public Prosecution believes in the obligatory nature of the CEDAW. It justifies its position by claiming that the international standards only need to go through local legislative channels to be binding within the local legal system if these standards state a new penalty. The CEDAW does not specify new penalties. It only states concepts and these do not conflict with the main principles of Palestinian Basic Law. Additionally, the CEDAW does not contain principles that are significantly different from the principles stated in the international Human Rights Bill (the Universal Declaration of Human Rights and the two Covenants, the ICCPR and ICECSR). Therefore, the CEDAW can be applied automatically and it is unnecessary to incorporate the CEDAW into the local legal system through issuing local legislation.63
61 G.2.1. 62 G.3.4. 63 G.2.4. 263
The Palestinian Constitutional Court finally issued its first Decision No. 4 in November 2017 concerning the legal value and the obligatory force of international treaties, including the CEDAW, within the Palestinian domestic legal system.64 It stated that local legislation which is inconsistent with international law is unconstitutional. In other words, according to judgment, the Constitutional Court confirmed the supremacy of international law. However, it issued another contradictory decision on 12 March 2018 to interpret this initial decision. The new decision stated that the legal value of treaties is less than the legal value of the Constitution. Additionally, the court stated that international conventions cannot be applied automatically in the Palestinian legal system, and they should go through domestic legislative channels to acquire obligatory force in the Palestinian domestic legal system. The new decision confirms the argument that the judiciary is still complicit with the legislature in resisting change.65
This decision was criticized for several reasons. First, it is not accurate to classify international treaties as having a lesser status to the Constitution. That is, the Constitution is considered part of local law. According to international law, all local laws including Constitutions, legislation and regulations are one unit. Therefore, it is illegal to invoke local laws to refrain from compliance with international law. Doing so strips international law of its meaning and purpose. However, it is the state’s option to refuse to join any treaty, or to consider entering a reservation.
Secondly, the legal value of Palestinian accession to international treaties is affected by stating that international treaties are not binding in the Palestinian legal context unless they are assimilated into the domestic legal system through issuing domestic laws. In other words, the Palestinian courts cannot apply these treaties automatically. It also means that Palestine is not obligated to submit Annual Reports to the convention’s monitoring bodies on the progress made in applying the provisions of the convention. Moreover, Palestine cannot be held accountable if it breaches their provisions. More importantly, it cannot sue Israel internationally based on these treaties.66
64 Al-Monzma Al-Arabya Li Qannon Al-Distori, Qarar Al-Mahkama Al-Distorya Raqam 4 2017 (5/12/2017)
This legal chaos makes it crucial for the Palestinian Constitutional Court to address the legal vacuum in the current Palestinian Basic Law regarding the obligatory force of the international standards within the Palestinian legal local system. It needs to issue a new interpretive decision that supersedes the decisions discussed above. This is necessary until this matter is legally resolved by an explicit legal provision in the future Palestinian Constitution.
4. Conclusion
This chapter has highlighted the main forms of legal reform required to protect young Palestinian women who belong to the lower and lower-middle classes from the constant fear of being subjected to honour violence that threatens their lives and well-being. Reviewing the UNDP stages of access to justice and comparing these stages with the solutions suggested in this chapter indicates that the main stages of the process have been covered.
As an endnote, there is an extensive debate among legal and sociological scholars regarding the shape of reform. Legal scholars argue that legislative change can lead to social change. On the other hand, sociological scholars argue that legal change comes as an outcome of social change. This chapter shows that legal and social change overlap. Legislative and the judicial change can lead to social change. However, legal change must be based on conscious social understanding of the phenomenon of honour violence, and this understanding must be reflected in the legislative and judicial processes. In other words, the suggested legal reform mechanisms stem from an improved understanding of the various stages of honour’s evolution as a sign of loyalty and the nature of the complicit relationship between the legislature and judiciary. This understanding is necessary for Palestine to achieve the effective legal reform required to change its social structure.
265
Chapter Eight
Conclusion
1. Introduction
The prevalence of honour violence towards women in Palestine and the failure of the Palestinian criminal justice system to adequately condemn and punish perpetrators remain serious problems in Palestinian society. To address these problems, this thesis aimed at defining the gender equality approach that suits the Palestinian case; analysing the dimensions of honour violence phenomenon and its ramifications; and investigating the potential mechanisms of reform to incorporate principles of gender equality into the Penal Code. This is in order to answer the main question of the thesis which is: How can the legal system in Palestine incorporate the principles of gender equality into the Penal Code to combat honour-based violence?
In addition to explain the significance and originality of the thesis, Chapter One also outlined the methodology for this project based on a combination of theoretical analysis, legal doctrinal analysis and qualitative empirical analysis.
The structure of the thesis was organized around eight sub-questions, which were designed to facilitate answering the main research question. This final chapter summarizes the main findings of each chapter and presents overall concluding remarks.
2. The Findings of Chapter Two
Chapter Two was designed to answer the question: What are the legal dimensions of the problem of honour-based violence?
To answer this question, Chapter Two highlighted the major dimensions of the problem: the definition of the honour paradigm, the relationship between honour-based violence and Islam, the honour code reflected in the Penal Code No. 16 of 1960 and the different approaches of conceptualizing of honour violence.
Chapter Two showed that honour-based violence is an issue related to the problematic social construction of gender in all Arab countries. The problem is not Islamic. However, it is seen as attached to Islam because of the attitude of some Islamic 266 scholars, who belong to the post-classical era development of legitimizing killing on honour grounds and moving the punishment for adultery from the public to the private sphere. The Penal Code No. (16) of 1960 was transplanted from the French Penal Code. Therefore, it is important to avoid associating the phenomenon of honour violence with religion to avoid the complications that arise as a result of this association.
Chapter Two also showed that the contemporary Arab Penal Codes borrowed elements from both the concept of traditional honour and the concept of a crime of passion. The Jordanian Penal Code No. (16) of 1960 which is still applied in the West Bank, followed the same approach of borrowing elements from these two different concepts. Chapter Two emphasized the importance of evaluating the treatment of honour violence in the Penal Code No. (16) of 1960 in relation to other sexual crimes.
Finally, the chapter discussed two approaches for conceptualizing the crimes of honour violence. The first is the unidimensional approach that is based on the idea that honour is a cultural crime that must be combated by using specific local cultural methods. The second is the universal approach which is based on the argument that honour violence is a form of gender-based violence that can be committed in every culture and must be combated by implementing the principles of gender equality. Through discussion of the second approach, evidence was presented to refute the stereotypes of the honour of the East and the passion of the West. The main finding of Chapter Two was that honour is a form of gender-based violence that must be combated through the implementation of the principles of gender equality.
3. The Findings of Chapter Three
Chapter Three was designed to answer the following question: What is the meaning of gender equality in the context of combating honour-based violence in Palestine?
To answer this question, the chapter highlighted the classical concepts of gender equality in the legal process. The chapter showed that these classic concepts are problematic, and that explained the failure of attempts by Palestinian activists to engage these concepts to combat honour-based violence in the legal process. Accordingly, the main finding of Chapter Three was that effective legal reform must be built on an extensive understanding of the cultural surroundings in which the law functions. In other words, it is essential to view the problem of honour violence as universal and at 267 the same time to take into consideration the special aspects of each society. Intersectionality was the tool used to study these unique aspects. Intersectionality can be applied in different disciplines including law. It overcomes the main shortcomings of multicultural feminists and their utopian dream of changing the world. Additionally, it bridges the gap between feminist theory and post-colonial discourse.1
4. The Findings of Chapter Four
Chapter Four was designed to answer the question: What are the manifestations of intersectionality in the Palestinian social structure that are relevant to understanding and addressing honour-based violence?
To answer this question, the main tools of intersectionality analysis were identified. These are: identifying the main social divisions of the intersectionality process and highlighting the concrete social relations resulting from that intersection. The main finding of Chapter Four was that social divisions intersect within the ideology of the different nationalism projects. Accordingly, the phenomenon of honour-based violence must be analysed through examining the manifestations and impacts of the intersection of gender, class and age within the Jordanian post-colonial and the Palestinian/Israeli conflict and post-conflict nationalism projects. Chapter Four concluded that it is difficult to compare the experience of Palestinian women with the experiences of other women who could benefit from political conflicts to accelerate their emancipation from the patriarchal system.
5. The Findings of Chapter Five
Chapter Five was designed to answer two questions: Why and how is the Palestinian legislative process affected by the intersection of specific social divisions? What are the stages of the evolution of the concept of honour as a sign of loyalty in the legislative process?
Chapter Five discussed the related social divisions and concrete social relations within the different nationalism projects that affected the Palestinian legal process at a micro level. This was necessary in order to highlight the outcomes of intersectionality and the stages of honour’s evolution as a sign of loyalty in the legislative process.
1 Kimberle Williams Crenshaw, “Toward a Field of Intersectionality Studies: Theory, Application, and Praxis” (2013) 38(4) Journal of Women in Culture and Society 785, 787, 804 and 806. 268
The first finding of Chapter Five was that the main outcome of the intersection of the various related social divisions in the Jordanian post-colonial nationalism project was the prevalence of honour as a sign of loyalty in the legislative process. The Jordanian post-colonial nationalism project aimed at striking a balance between tradition and modernity. Therefore, Article (340) of the Penal Code No. (16) of 1960, that regulates honour killing borrowed some elements from the crime of passion. However, the traditional concept of honour prevailed in this legal provision when the legislators attempted to justify the legitimacy of honour violence. The prevalence of honour as sign of loyalty was more evident when the provisions on sexual crimes, (such as incest, rape and adultery), and the legislative punitive policy were examined.
The second key finding was that the Palestinian Liberation Organization acted as a ‘double-edged sword’ in terms of combating honour-based violence. On the one hand, it gave women partial rights. However, on the other hand, it enhanced women’s roles as the ‘mothers and the preservers of the nation’ and the ‘boundary makers’ of the nation. This further entrenched the value of honour as a sign of loyalty. The Israeli occupation and its targeting of women as a method of targeting the nation’s ethic honour exacerbated the phenomenon of honour violence and elevated the value of honour as sign of loyalty.
The third finding was that the Palestinian post-conflict state project had to face the effects of this heavy legacy. Therefore, its attempt to draft modern provisions to combat honour violence failed. The provisions were an attempt to create a state of syncretism between the partial rights that women had acquired within the PLO and the conservative agenda of the Palestinian state on gender matters. Analysis of the legislative process showed that the legislature was no more progressive than the judiciary.
Finally, by highlighting the outcome of intersectionality on the legislative process, Chapter Five showed that the intersection of various social divisions created a group of lower-middle and lower classes young women who are the most disadvantaged by the constant evolution of honour as a sign of loyalty in legislation.
6. The Findings of Chapter Six
Chapter Six was designed to answer the following questions: Why and how is the Palestinian judicial process affected by the intersectionality of specific social divisions? 269
What is the nature of the relationship between the judiciary and the legislature in entrenching honour-based violence?
These questions were answered based on analysis of interviews conducted with 20 judges from all levels of the court system in the West Bank and analysis of 20 fatal honour violence cases, informed by the understanding of concrete social relations advanced in Chapter Five.
Thematic analysis of the interview data identified 7 main themes. The first theme was honour as custom. Most interviewed judges confirmed their understanding that the concept of honour is directly related to customs, rather than religions. This finding supported the argument advanced in Chapter Two which showed that honour is not an Islamic concept. The other themes to emerge from the interviews are: the limits of legislative transplantation; nominal legal reform; the unique nature of honour-based violence in the Palestinian context; the role and the authority of judges in the civil legal system and the constraints of relevant legislative provisions.
These themes reflect judges’ justifications of their passive role in the reform process for combating honour-based violence. However, the analysis of 20 cases of honour killing showed that, rather than being passive or powerless, judges have developed their own mechanisms for applying the traditional honour code. The thesis argued that this amounts to a form of “judicial discrimination”.
Accordingly, Chapter Six considered three contradictory arguments on the judiciary’s role in entrenching honour violence. The first was the argument of Abu Odeh,2 that judges have a tendency to be more influenced by the traditional concept of honour than legislators. On the other hand, the qualitative data that emerged from the interviews with 20 Palestinian judges highlighted the second argument that was based on judges’ claims concerning their passive role within the civil legal system. Therefore, their faithful application of the legislative punitive policy can be justified. The third argument is Warrick’s compound argument which is a combination of the two previous arguments. Warrick argued that judges are influenced by their social surroundings which explains their resort to applying Article (98). Then she argued that judges have
2 Lama Abu Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies” (2010) 2 Comparative Law Review 2, 27. 270 limited authority in the civil legal system. Therefore, judges cannot impinge upon the rules set by the political regimes.3
The argument that conservative judges, relying on the traditional concept of honour,4 hamper the efforts of the more progressive legislature by failing to use mitigation based on the passion model as is found in modern legislation, was countered in Chapter Five by highlighting the role of the legislature in conserving all of the mechanisms that facilitate perpetuating the concept of honour as a sign of loyalty in the legislative process. The second argument presented by judges throughout the interviews in this chapter (six), conducted specifically for the purposes of this thesis, was that they only play a passive role in the reform process. This passive role, they argued was a result of the fact that they are only involved in the application of legislation, not in drafting it. This argument which represents an antithesis to the first one in Chapter Two was clearly refuted in this chapter’s analysis of the discretionary mechanisms that are in place to allow judges to make decisions based on and in accord with the traditional honour code. As careful observation of these arguments and their refutation demonstrates it is neither the legislature or judiciary that can be held solely responsible for impeding the process of legal reform. Instead it is clear that both of them are complicit in preventing change as the thesis argued in this Chapter Six.5
Chapter Six also argued that the empirical data along with the concrete social relations of intersectionality highlighted in Chapter Five, explained why and how the judicial process is affected by the intersection of social divisions. That is, the judicial move from banning the application of Article (98) in cases of honour killing to applying this article extensively was consistent with the Jordanian legislative approach of changing from using the concept of honour as a means to strike a balance between tradition and modernity to using it as a sign of loyalty. Additionally, in the interviews, judges referred explicitly to the impact of the Israeli occupation on entrenching the concept of honour
3 Catherine Warrick, “The Vanishing Victim: Criminal Law and Gender in Jordan” (2005) 39(2) Law and Society Review 315, 340. 4 Abu Odeh, above n 2, 27. 5 In the U.S system judges used the provocation defence to justify the act of the perpetrator and sabotaged legislative attempt at reform, while in Palestine, the legislature and judiciary followed the same line in terms of justifying the legitimacy of honour violence. Legislators created a legislative punishment that encouraged honour violence and judges created their own mechanisms to guarantee the application of such a policy. 271 as a sign of loyalty. Finally, the judges’ position on the application of CEDAW in the Palestinian local legal system and the creation of their own mechanisms for applying the honour code, showed that the judicial approach is consistent with the PA’s stance regarding honour. These judicial mechanisms of applying the honour code reflect the prevalence of honour as a sign of loyalty in the judicial process. In other words, the outcome of intersectionality in the judicial process is similar to its outcome in legislation. That is because judges are nationalists and are highly influenced by the agenda of the nationalism project.
7. The Findings of Chapter Seven
Chapter Seven addressed the following forward-looking practical question: What legal reforms can contribute to a solution?
The findings of Chapter Six provided the foundation on which specific legal reforms were developed.6 That is, understanding the stages of honour’s evolution as a sign of loyalty in the legislative process and the complicit relationship between the legislature and the judiciary, are necessary elements for identifying the characteristics of future processes of reform. Legislative reform must be based on identifying legislative mechanisms for combating the treatment of honour as a sign of loyalty. Therefore, drafting a new Penal Code requires taking into account all the legislative concepts that contribute in entrenching honour as a sign of loyalty, such as the vague age of criminal liability, the unpunished incitement in the cases of honour killing and the lack of differentiation between submission and consent. Judicial reform must be based on encouraging the judiciary to fill the legislative gaps and developing the judicial process in order to assimilate future legislative change. This comes through elevating the role of the Court of Cassation in the reform process, developing legal education and encouraging the judicial support of legislative reform by taking part in the law-making process as well as defining the legal value of international standards within Palestinian legal system.
6 Irving M. Copi, Introduction to Logic (New York: The Macmillan Company, 1961) 5. 272
8. Final Observations
Some scholars, such as Schneider, Warrick and Abu Odeh have described honour violence as a political phenomenon.7 The findings of this thesis support this characterization and the accuracy of its application to Palestine. As a contribution to these arguments, answering the sub-questions of this thesis explains why and how this phenomenon is political, and the impacts of the intersection of the political factor with the relevant social factors on entrenching honour violence. Understanding these aspects of honour violence is essential for identifying the roots of the problem and the reasons why it is deeply entrenched in the legal process, and therefore, answer the main research question of “how does the legal system in Palestine incorporate gender equality principles into the Penal Code to combat honour-based violence?”
A reform process that is based on this understanding is the best way of guaranteeing meaningful social reform. In other words, legal reform can lead to social change if this reform is based on understanding the complex social and political surrounding environment in which the law operates. This approach has the greatest potential to stop the tragedy of honour violence that continues to threaten Palestinian women.
7 Jane Schneider, “Of Vigilance and Virgins: Honour, Shame and Access to Resources in Mediterranean Societies” (1971) 10(1) Ethnology 1, 2. Warrick, above n 3, 318-319. Abu Odeh, above n 2, 18-29. 273
Appendix A:
The Interview Protocol
My name is Aya Omran. I’m a Palestinian lawyer and a PhD candidate. I’m currently working on my PhD at the University of New South Wales/Australia. My thesis title is “Incorporating the Principles of Gender Equality into the Penal Code of Palestine to Combat Honour-based Violence”.
Honour-based violence is an increasing phenomenon that concerns law reformers because of the challenges it presents to the legal system in Palestine. In this regard, incorporating gender equality principles into the legal system to combat this phenomenon is viewed as an important measure. This measure became essential after the Palestinian accession to the CEDAW treaty in April 2014. That is because honour- based violence as a form of gender-based violence is classified as a form of discrimination against women. The process of incorporating gender equality principles into the legal system requires a full understanding of the dimension of the honour-based violence problem. While there are many dimensions to this issue, my target is limited to studying the legal dimension of the problem in order to help to conclude the methods of the legal reform.
Studying some aspects of the legal process indicate that there is a gap between the legislative and the judicial practice. The aim of the interviews is to learn from your experience in order to understand the reasons behind this gap. Each audio taped interview takes about 45 minutes. You will be given the option of reviewing your transcript before its inclusion in the thesis. Please note that your confidentiality and professional reputation will be highly protected. Before conducting the interview, you will have to sign a consent form. This consent can be withdrawn at any stage before publishing the thesis. As reminder, you can decline to answer any question. Additionally, you can withdraw from the interview at any stage if you think that any of my questions jeopardizes your professional reputation.
The Concept of Honour-based Violence:
To begin, I’d like to learn about your understanding of the concept of honour-based violence
274
1. Tell me about the origin of the phenomenon of honour-based violence • Religious phenomenon • Traditional phenomenon 2. To which extent are you influenced by the cultural surrounding (religion, social norms) when you deal with honour killing cases? • Do you consider the concept of honour as a mechanism to protect the authenticity of the Palestinian society? • How important is the concept of honour in maintaining Palestinian society and culture? • Do you think that honour-based violence is compatible with the Islamic penalty for adultery?
Article (98) v. Article (340):
Article (340) of the Penal Code No. (16) of 1960 represents a legislative attempt to put restrictions on honour-based violence. However, judges are more inclined to apply Article (98) of the same code which is a general provocation article. Applying Article (98) justifies the killing act and at the same time criminalizes the victim.
1. Tell me about your experience in applying these two articles • When do you apply Article (340)? • When do you Apply Article (98)? • To what extent do you resort to Article 98 of the West Bank’s Penal Code as a substitute for article 340? 2. To which extent the moratorium of Article (340) is fruitful in combating honour- based violence? • Does the moratorium of Article (340) increases/decreases the judicial resort to Article (98) in honour killing cases?
Honour-based Violence as a form of Resistance:
Honour is a method of proving loyalty to the group. The importance of honour as a method of proving loyalty becomes higher in the Palestinian social structure especially in light of the fact that Palestine is still under a prolonged occupation. The Israeli occupation is based on the ideology of ethnic cleansing of the indigenous people.
275
1. Can you tell me about your experience of applying Article (98) during the periods of unrest? • Your practice during the direct Israeli occupation. • Your practice during the first and the second uprisings.
2. How does tribal judiciary influence the formal judiciary in honour cases?
Judges’ Understanding of Gender Equality/ Honour Violence and Gender Equality:
Incorporating the principle of gender equality is the pillar of the legal reform process to eradicate honour-based violence.
1. Can you tell me about your understanding of gender equality? 2. How did you shape your understanding of gender equality? 3. To which extent your understanding of gender equality is shaped by your legal education? 4. To which extent the continuous judicial training affected your understanding of gender equality?
In Conclusion:
Do you think that there is a gap between the legislative and the judicial practice and if so, why?
276
Appendix B:
Ethics Approval
277
278
Appendix C:
Invitation Letter
Dear Justice,
Researchers in the School of Law at the University of New South Wales/Australia are conducting a research titled:
“Incorporating the Principles of Gender Equality into the Penal Code of Palestine to Combat Honour-based violence”
The study highlights the differences between the legislative and the judicial practice in the cases of honour-based violence.
Accordingly, the school of law at the University of New South Wales is honoured to invite you to participate in this study. Your participation is going to be through taking part in an audio recorded 45-mintue interview.
We are looking forward to learning from your unique experience.
If you are interested in taking part in the study, please contact: Name: Aya Omran Email: [email protected] Phone: 0597161858
Yours Sincerely,
Aya Omran
279
Appendix D:
Consent Form
280
281
282
283
284
Appendix E:
Approval Letter from the High Judicial Council
285
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[Trans: Mamdoh Nofal, “The Problematic Relationship between the Palestinian Authority and the Palestinian Liberation Movement and its Solutions” (1995) 6(22) The Palestinian Studies Magazine 1].
Nourse, Victoria, “Passion’s Progress: Modern Law Reform and the Provocation Defence” (1997) 106 Yale Law Journal 1331.
Peteet, Julie, “Male Gender and Rituals of Residence in the Palestinian Intifada: A Cultural Politics of Violence” (1994) 21(1) American Ethnologist 31.
Quraishi, Asifa, “Her Honour: an Islamic Critique of the Rape Laws of Pakistan from a Woman-sensitive Perspective” (1997) 18 Michigan Journal of International Law 287.
Roberts, Dorothy, “The Meaning of Gender Equality in Criminal Law” (1994) 85(1) Journal of Criminal Law and Criminology 1.
Rodriguez, Patricia M. and Agneta H. Fischer, “The Role of Honor Concerns in Emotional Reactions to Offenses,” (2002) 16(1) Cognition and Emotion 143.
Sa’ar Amalia and Taghreed Yahia-Younis, “Masculinity in Crisis: The Case of Palestinians in Israel” (2008) 35(3) British Journal of Middle Eastern Studies 305.
Schnider, Jane, “Of Vigilance and Virgins: Honour, Shame, and the Access to Resources in the Mediterranean Societies” (1971) 10(1) Ethnology 1.
Sever, Aysan and Gocecicek Yurdakul, “Culture of Honour, Culture of Change: A Feminist Analysis of Honour Killing in Rural Turkey” (2001) 7(9) Violence against Women 964.
Shalakany, Amr A, “Islamic Legal Histories” (2008) 1(1) Berkeley Journal of Middle Eastern and Islamic Law 1.
Shalhoub-Kevorkian, Nadera and Suhad Daher Nashef et al, “Al-Onof Al- Jsadi, Ajsad Al-Nisa’, W Al- Est’mar Al-Istatni Al-Israeli” (2014) (3) Al-Markaz Al-Arabi La Dirsat Al-Ijtima’ya Al-Tatbeqya, 2. [Trans: Nadera Shalhoub-Kevorkian and Suhad Daher Nashef et al, “Physical Violence, Women’s Bodies and the Israeli Settler’s Colonialism” (2014) (3) The Arab Centre for the Applied Social Studies 2].
Sherwell, Tina, “Palestinian Costume, the Intifada and Gendering of Nationalist Discourse” (1996) 5(3) Journal of Gender Studies 293. 297
Warrick, Catherine, “The Vanishing Victim: Criminal Law and Gender in Jordan” (2005) 39(2) Law and Society Review 315.
Welchman, Lynn, “Honour and Violence against Women in a Modern Shar’i Discourse” (2007) 5(2) Hawwa 139.
Welchman, Lynn, “The Bedouin Judge, The Mufti and the Chief Islamic Justice: Competing Legal Regimes in the Occupied Palestinian Territories” (2009) 38(2) Journal of Palestine Studies 6.
Wilson, Jeremy M, “Reconstructing Internal Security in Post-Conflict Societies: The Challenge and Successfulness of Developing Democratic Police and Justice Institutions” (2011) 24(1) Security Journal 52.
Yuval-Davis, Nira and Floya Anthias, “Contextualizing Feminism- Gender, Ethnic and Class Divisions” (1983) (15) Feminist Review 62.
Yuval-Davis, Nira, “Nationalist Projects and Gender Relations” (2003) 40(1) Narodna Umjetnost 9.
Zakariah, Luqman, “Custom and Society in Islamic Criminal Law: A Critical Appraisal of the Maxim Custom is Authoritative and its Sisters in Islamic Legal procedures” (2012) 26(1) Arab Law Quarterly 75.
Zuhur, Sherifa, “Gender, Sexuality and Criminal Laws in the Middle East and North Africa: A Comparative Study” (2005) Women for Women’s Rights 9.
Reports
“Evaluating the Status of the Palestinian Women in Light of the Beijing Platform for Action” (A Report of United Nations Development Fund for Women, 2002).
“Killing Women based on a Sexual Motive: Promising Practices, Challenges and Practical Recommendations” (A Report of the UN’s Experts Team Concerning Killing Women, Bangkok, 11-13 November 2014).
“Qatal el Nisa’ fi Falsteen baeen Al-Thaqafa Al-Sa’eda w Motatlabat Al-Tagheer: Taqeer Tahlili Hawal Nata’ej Rased Qatel Al-Nisa’ w Tawtheqha Fil Mojtam’ Al- Falastini” (Taqreer Markaz Al-Mar’a Li Mos’da Al-Qanonya Wal Irshad, 2016) [Trans: “Killing Women in Palestine Between the Prevailing Culture and the Requirements for Change: An Analytical Report Concerning Documenting Killing Women in the Palestinian Society from 2014 to 2015” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2016]. 298
“The Annual Report of the Palestinian Independent Commission for Human Rights of 2011” (A Report of the Palestinian Independent Commission for Human Rights 2012).
“The Annual Report of the Palestinian Independent Commission for Human Rights of 2010” (A Report of the Palestinian Independent Commission for Human Right, 2011).
“The Annual Reports of the Palestinian Commission for Human Rights of 2009, 2012, 2013, 2014, 2015 and 2016” (A Report of the Palestinian Independent Commission for Human Rights, 2010,2011,2012, 2013, 2014, 2015, 2016 and 2017).
Abdeen, Issam, “Dirsa Qanonya Hawal Al-Qannon Al-Mo’qat Li Elgha’ Al-Mada (340)” (Taqreer Mo’saset Al-Haq, 2014). [Trans: Issam Abdeen, “A Legal Study Regarding: The Provisional Law of Abolishing Article (340)” (A Report of Al-Haq Institute, 2014)].
Abdo, Nahla, “Al-Mar’a Wal Faqar: Moraja’a Naqdya La Adabyat” (Taqreer Moqdam Ela Monzamat Al-Omam Al-Motahda Li Tarbya w Thaqafa Wal Aloom, 2006). [Trans: Nahla Abdo, “Women and Poverty in the Occupied Palestinian Territories: A Critical Literature Review” (A Report Submitted to the United Nations Educational, Scientific and Cultural Organization (UNESCO), 2006)].
Abu Ghosh, Hanan, “Nisa’ Bela Asma’: Taqreer Hawal Qatal el Nisa’ Ala Kalyfiat Al- Sharaf Fil Mojtam’ Al-Falstini men 2007 ela 2010” (Taqeer Markaz Al-Mar’a La Mos’da Al Qanonya Wal Irshad, 2010). [Trans: Hanan Abu Ghosh, “Women without Names: A Report on Femicide in the Name of Honour in Palestinian Society from 2007 to 2010” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2010)].
Access Denied, Palestinian Women’s Access to Justice in the Occupied West Bank” (UN Women Report, 2014).
Al-Ashqar, Ahmad, “Qatal Al-Nisa’ Ala Kalfyat Al-Sharaf: Dirasa Tahlilya Li Al- Tashree’ w Ahkam Al-Qada” (Taqreer Maktab Al-Mofwad Al-Sami La Hoqook Al- Ensan, 2014). [Trans: Ahmad Al-Ashqar, “Murder of Women in Palestine under the Pretext of Honour: Legislation and Jurisprudence Analytical Study” (A Report of The United Nations Human Rights Office of the High Commissioner, 2014)].
Baydoun, Azza Charara, “Cases of Femicide before Lebanese Courts” (A Report of KAFA (enough) Violence and Exploitation 2011).
Ludsin, Hallie, “Women and the Draft Constitution of Palestine” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2011).
Nasir, Khadeja Hussein, “Incest: Murder of the Soul” (A Report of the Independent Commission for Human Rights, 2012).
299
Nasir, Khadeja Hussein, “The Consequences of the Palestinian Ratification on the Convention on the Eliminating of All Forms of Discrimination against Women CEDAW of 1979” (A Report of The Independent Commission for Human Rights, 2013).
Nduwimana, Francoise, “United Nations Security Council Resolution 1325 (2000) on Women, Peace and Security: Understanding the Implications, Fulfilling the Obligations” (A Report of the Office of the Special Advisor on Gender Issues and Advancement of Women).
Sa’deh, Luna, “Tawsiyat Mahlya Li Mokfhat Al-Onof Deda Al-Mar’a Fi Al-Dafa Al- Ghrbeya w Qta’ Gaza” (Taqreer Maktab Al-Mafwad Al-Sami La Hokok Al-Ensan, 2009). [Trans: Luna Sa’deh, “Local Recommendations to Combat Violence against Women in the West Bank and the Gaza Strip” (A Report of the United Nations Human Rights Office of the High Commissioner, 2009)].
Sihweel, Lotfya, “Nisa’ Mostabaha Arwahan: Qtal El-Nisa’ Fi Falsteen Fi 2011 w 2012” (Taqreer Markaz Al-Mar’a Li Mos’da Al-Qanonya Wal Irshad, 2013). [Trans: Lotfya Sihweel, “Right of Life Denied: Killing of Women in Palestine in 2011 and 2012” (A Report of Women’s Centre for Legal Aid and Counselling WCLAC, 2013)].
Electronic Resources (Books, Articles, Reports)
Al-Rifa’i, Ahmad Mohmmad, Moqdema Ela Olom Al-Qanonya: Nazaryat Al-Qanoonya (Banha: Jam’at Banha, 2008)
Back, Les, “How Many Qualitative Interviews Is Enough?” National Centre for Research Methods Review Paper
Cherry, Kendra, “Understanding Collective Cultures” 31 October 2018
Daher-Nasif, Suhad and Sarah Ihmoud et al, “Violence against Palestinian Women: An IndigenousFeministApproach”
Helfont, Samuel, “Post-Colonial State and the Struggle for Identity in the Middle East since World War Two” 23October 2015 Butcher History Institute
300
Ma’had Al-Hokook Fi Jame’at Birzeit, “Aliyat Damj Al-Tashri’at Wefqan Li Moso’at Al-Tashri’aAl-Ordinya”
Moghadam, Valentine M., Modernizing Women: Gender and Social Change in the Middle East (USA: Lynne Rienner Publisher, 2003). Downloaded from
Qafisheh, Mutaz, “Dirasa Naqdya Li Qarar Al-Mahkama Distorya Al-Sader fi 12 Mars 2018” Maan News 24/3/2018
“Taqreer Falsteen Al-Awal Hawal Tatbeeq CEDAW” (Taqreer Wazart Al-Kharijya Al- Falastinya, 2017) at:
“Law Commission’s Report on Partial Defence to Murder” (A Report of UK Law Commission, 2004) at:
Legislation
The Criminal Procedure Law No. (3) of 2001.
The French Penal Code of 1975.
The Jordanian Royal Decree No. 86 of 2001.
The Lebanese Penal Code of 1943.
The Palestinian Basic Law of 2003.
The Palestinian Draft of the Constitution.
The Palestinian Draft of the Penal Code of 2011.
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The Panel Code No. (16) of 1960.
The Penal Code No. (74) of 1936.
The Provisional Law No. (5) of 2018
The Provisional Law No. (7) of 2011.
The Ottoman Penal Code of 1858.
Law No. (8) of 2011 of Modifying Article (340).
The Military Proclamation No. 7.
The Presidential Decree No. (19) of 2009.
The Presidential Decree No. (29) of 2000.
International Standards:
The Convention on the Elimination of All Forms of Discrimination against Women.
The UN Declaration on the Elimination of Violence against Women.
Recommendation No. (19) of the Committee on the Elimination of All Forms of Discrimination against Women.
The General Recommendation No. (25) on Article (4) Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women.
Theses
Milhem, Feras, The Origins and Evolution of the Palestinian Sources of Law (PhD Thesis, Vrije Universiteit Brussel, 2004).
Web Pages
Abeer Ismaeel, Haq Al-Nisa’ Fi Mirath Dae’ Li Ajal Gheer Mosama (30/3/2019)
Ahmad Barak, Nahwa Qanoon Iqabi Mowhad w Asri Li Bilad Arabia (31/8/2013)
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Hani Ayyad, Al- Motalaqa Wal Zawaj Al-Thani (30/3/2019)
Hisham Khrisat, Al-Ordiniyon Men Asel Falastini Hom Al-Khaser Al-Akbar (10/3/2019)
Israeli Missions Around the World, Hamas Covenant (20/4/2019)
BBC News, Lemtha La Yakshef Dahya Al-Ghtisab Tafaseel Al-Hadeth (20/4/2019)
Safeguarding Children Board, Honour-based Violence (30/12/2018)
The Palestinian Legal and Judicial Database, The Legislative Process in Palestine (22/8/2013)
Australian Treaty Series, the International Covenant on Civil and Political Rights (4/10/2016)
The United Nations Human Rights Office of the High Commissioner, The General Recommendation No. 19 of the Committee on the Elimination of All Forms of Discrimination against Women (10/10/2016)
The Palestinian Legal and judicial database, The Legislative Process in Palestine (20/9/2014)
Al-Shorta Al-Filstinya, Dirsat w Ehsa’yat (6/9/2016)
Majles Al-Qada’ Al-Ala Al-Falsteeni, Ta’leemat w Anzima (20/1/2015)
IRIN News, Violence against Women (2/1/2015) < http://www.irinnews.org/indepthmain.aspx?InDepthId=20&ReportId=62847>.
UN Women, The Committee on the Elimination of All Forms of Discrimination against Women (5/12/2014)
United Nations Human Rights Office of the High Commissioner, Special Rapporteur on Violence against Women, Its Causes and Consequences (5/7/2018) < https://www.ohchr.org/en/issues/women/srwomen/pages/srwomenindex.aspx>
Jaredat Al-Haya, Al-Ra’ees Yosadek Ala Itifaqat CEDAW (16/4/2016)
Al-Itihad Al-Am Li Mar’a Al-Falestinya, Al- Kota Al-Istratejya Li Mokafhet Al-Onof Deda Al-Mar’a men 2011 ela 2019, 15 (16/4/2016)
The Australian Government, Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (10/10/2016)
United Nations Human Rights Office of the High Commissioner, The Jordanian Annual Report Submitted to the Committee on the Elimination of All Form of Discrimination against Women on 13thMarch 2012 (10/4/2016)
The American Psychological Association, Definitions Related to Sexual Orientation and Gender Diversity (11/6/2016)
Al-Jazeera Interactive, The Price of Oslo (31/8/2017)
Waklat Donya Al-Watan Li Akhbar, Jam’yat Al-Mar’a Al-Amela Tosder Ketban Beonwan Moshraket Al-Mar’a Al-Falistinya Fi Mofwadat Al-Salam (1/2/2018)
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Watan News Agency, The Palestinian Working Women Society for Development issued a Book Concerning Women’s Participation in Peace Process].
Research Methodology. net, Convenience Sampling (16/5/2018)
Majles Al-Adel Al-Aala, Tshkeel Majles Al-Adel Al-Aala (1/10/2017)
Majles Al-Qada’ Al-Aala Al-Falastini, Taskeel Al-Mahakem Fi Falesteen (1/10/2017)
Ma’had Al-Hoqoq Fi Jam’et Birzeit, Al-Wada’ Al-Qanoni Fi Falsteen (1/12/2017)
“Agendet Al-Siysat Al-Watanya”
Al-Jazeera.net, Al-Hokom Beelgha’Itifaqyet Oslo (30/6/2017)
Qada’News, Dawr Al-Qadi Al-Watani Fi Mwa’met Al-Tashre’at Al-Mahalya Ma’ Ma’yeer Hokkok Al-Ensan (15/6/2017)
Jaredet Al-Watan, I’lan Bara’et Al-Mothameen Fi Maqtal Aya Barad’ya Li En’dam Al- Adela (1/11/2017)
Waklet Watan La Akhbar, Sabeqa Qada’ya Fi Qadyet Qatel Mwatina Qbal 3 Sanawat (1/3/2018)
The Palestinian Legal and Judicial Database, Qatel Ala Khalfyat Al-Sharf (17/6/2017)
Ma’had Al-Tadreeb Al-Qada’i, Baramej Al-Tadreeb (15/11/2017)
Al-Niyaba Al-Ama Al-Falstinya, Niyabat Mokfahat Al-Onof Deda Al-Mar’a (1/12/2017)
Al-Monzma Al-Arabya Li Qannon Al-Distori, Qarar Al-Mahkama Al-Distorya Raqam 4 2017 (5/12/2017)
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