“The violation of women’s rights in Islamic countries through a cross- cultural analysis of distinct countries, such as Saudi Arabia, Morocco, Jordan and Afghanistan”
Thesis By Afina Alieva
Submitted in Partial Fulfillment Of the Requirements for the Degree of Bachelor of Arts In International and Economic Relations
State University of New York Empire State College 2017
Reader: Max Hilaire
1 Statutory Declaration / Čestné prohlášení
I, Afina Alieva, declare that the paper entitled:
“The violation of women’s rights in Islamic countries through a cross-cultural analysis of
distinct countries, such as Saudi Arabia, Morocco, Jordan and Afghanistan”, was written by myself independently, using the sources and information listed in the list of references. I am aware that my work will be published in accordance with § 47b of Act No.
111/1998 Coll., On Higher Education Institutions, as amended, and in accordance with the valid publication guidelines for university graduate theses.
Prohlašuji, že jsem tuto práci vypracoval/a samostatně s použitím uvedené literatury a zdrojů informací. Jsem vědom/a, že moje práce bude zveřejněna v souladu s § 47b zákona
č. 111/1998 Sb., o vysokých školách ve znění pozdějších předpisů, a v souladu s platnou
Směrnicí o zveřejňování vysokoškolských závěrečných prací.
In Prague, 08.12.2017 Afina Alieva
2 Acknowledgement
In the first place, I would like to express my special thanks to my mentor, Professor Max
Hilaire, for his guidance, support and motivation, which helped me to clarify the directions of my thesis, without his admonitions I would not be able to write this paper.
Besides my mentor, I would like to express my sincerest gratitude to such intelligent and enthusiastic professionals Óscar Hidalgo-Redondo, Lenka Kinclova and Jakub Leps for teaching the most interesting classes that gave me a huge amount of knowledge on my profile, which, I believe, will help me with my life as a professional.
I would also like to thank my friends for always cheering me up, supporting me and motivating me. Guys, I love you.
Last, but not least, I would like to express my gratitude to my Mom and Dad for giving me an opportunity to obtain my bachelor degree in Europe, for always supporting me throughout my path.
3 Table of Contents:
I. Introduction
II. The Development of Human Rights
2.1 The History of Human Rights
2.2 The Universality of Human Rights and Cultural Relativism.
2.3 Non-discriminability and equality between women and men
III. Sharia Law.
3.1 The Basic Concept of Sharia Law
3.2 Sharia Law in Terms of Family
3.3 Women's Rights under Sharia Law
IV. Islamic Countries and the Concept of Human Rights
4.1 Early Formulation and Influence
4.2 Constitutionalism and Rights
4.3 Women's Rights
V. A Comparison of "Western" and "Muslim" Understandings of Human Rights
5.1 The Legal System Protecting Women's Rights in Islamic Countries
5.2 The Response of the International Community
5.3 The Role of IGOs and NGOs to Promote Women's Rights
4 VI. A Comparative Study of Increasing Freedom and Liberty for Women in Different
Islamic Countries
6.1 Saudi Arabia
6.2 Afghanistan
6.3 Morocco
6.4 Jordan
VII. Conclusion
5 Abstract
Research Question: During the whole research process of my thesis, I would like to identify the key determinants that influence liberty and freedom in connection with women’s rights in Islamic countries, taking into consideration the history of each nation's culture and religion. At the beginning of my research, my prediction is that this cross- cultural analysis will help me to obtain the answer to my question.
My Statement: Once you are born a human being, by definition you obtain all human rights, regardless of whether you belong to a minority group, and no one should be granted the ability to limit your rights, culture, religion or government.
Summary of my Proposed Research Project: According to the United Nation's (UN)
Population Division, 49.7% of the world's population is women. Nowadays, the protection of women's rights can be considered one of the most important issues facing humanity, not only in the legal environment, but also in the social and political arenas. Moreover, gender equality is a foundation of any democratic society that promotes the protection of and respect for human rights and social justice. Nevertheless, it is true that almost all women around the world face discrimination to varying degrees: inside the family, in the workplace or in the community in general. Even though the roots and consequences of this reality may vary from community to community, from one culture to another, it is undeniable that inequality among women is a widespread phenomenon. Peculiar to this phenomenon of inequality is its facilitation by the existence of well-structured cultural, traditional and religious customs as well as stereotypes, which belittle the women's role in society.
6 It may seem that during the current process of globalization we can perceive a relatively true image of the traditions and customs of a culture while traveling, however, in order to understand how people really live in a particular country, we must experience living there, because the surface is usually quite deceptive, an opinion which applies not solely to women's rights. Indeed, in different parts of the world, women have different positions. For instance, in the West, women have more or less the same opportunities as men do - the same rights and the same levels of protection. By contrast, women’s way of life in Islamic countries is not free enough; for instance, the capacity for a woman to be able to participate in the economic and political life of a country. In most Islamic countries, women are assigned only the roles of mother, wife, or landlady. Nevertheless, sometimes, women whose lives are aligned with certain stereotypes do not live as we imagine, and do actually have certain rights and positions in society.
First of all, the aim of my research is to understand women’s rights among similar cultures and the same religion in Islamic Countries. I have chosen the case studies of Morocco,
Jordan, Saudi Arabia and Afghanistan, in order to compare these countries and discover similarities and differences regarding women's right.
Moreover, in my research, I would like to raise a question about Sharia law and the Quran, which despite the existing norms and laws in Islamic countries, continue to hold the superior position over legal norms, a situation which in turn leads to disparities when determining the legal status of women. Evidently, women in Islamic countries have a disadvantaged position; for example, it is almost impossible to meet a woman in power in a traditional Islamic community. In addition, this position of women can be noticed even in family life, where a woman does not even have the right to her own opinion.
7 A number of sacred, social, legal and cultural issues predetermine the complexity of solving the problem of women’s rights. Therefore, in this case, I would like to examine the international community's response and the role of IGO's and NGO's in promoting women's rights and preventing the violation of human rights.
8 Introduction
The politics of the 21st century takes into account the human rights more than ever as this concept has become the most important part of the internal political realm of every democratically developing society. Despite the fact, the idea of human rights in their existing form is relatively new; its roots come from earlier attempts to create some kind of protection of basic human rights. Such efforts are found in the historical documents of many cultures of the world. The brightest examples of the ancestors of the human rights, which we are practicing nowadays, could be the Magna Carta (1215), The English Bill of
Rights, the French declaration on the Rights of Man and Citizen (1789) and so on. With this in mind, the World War II has emerged the importance of establishment of rules and laws that would protect all humanity from the aggression, suppression, oppression and humiliation on the global stage and implement it into the comprehensive moral sense.
Therefore, since the last century the charters of sovereign states of different cultural basis began to include the human rights issue. Nevertheless, some of these charters, when originally were translated into the policy, have excluded women and women rights, and even some of them still practice this exclusion.
In the modern world of the International relations and politics, the question regarding violation of women’s rights in the Islamic countries remains topical issue. The desperate humanitarian situation, which is connected with violation of women’s rights, creates the considerable need for creation of a new way or mechanism for more effective solution regarding this problem. Nowadays, it is worth to say, not Islamic Countries practice the contravention of women’s rights and humiliation of female nature. A good example of
9 respectful behavior concerning women and aspiration of a statement of their rights could be considered such countries as Morocco and Jordan. Both of these countries within several decades have tried to organize and maintain welfare that is focused on female part of the country, trying to give equal opportunities for education, and then for work. On the other hand, not all Islamic Countries are developed in the same way, for instance, women’s right issue is crucial in Saudi Arabia and Afghanistan. Despite the fact that all these countries have similar traditions and origins, and, more importantly, have the same religion and
Sharia law, governments of the first two countries are different from the last two. What is the reason of such drastic difference and what is the motive of such kind of cruelty towards women and disrespect for women’s right and nature?
In order to answer previous questions, it is necessary to look into the history of the nations and become more familiar with the statutes of the culture and religion, that in this region play crucial role, to analyze present situation, the response of the international community and make a prediction of the possible future scenario for the chosen case studies.
First of all, the aim of my research is to understand women’s rights among similar cultures and same religion in Islamic Countries, on the case study of Morocco, Jordan, Saudi Arabia and Afghanistan, in order to compare these countries and find out similarities and differences in order of existence of women's right.
During the whole research process of my thesis, I would like to find out the key determinants, which influence liberty and freedom of women’s right in Islamic countries, taking into the consideration the history of the nation, culture and religion. At the beginning of my research, my forecast is that the cross-cultural analysis will help me to obtain the answer to my question.
10 Moreover, in my research, I would like to rise a question about the Sharia law and the
Quran, which despite the existing norms and laws in Islamic countries, continue to hold the superior position over legal norms, which in turn leads to disparities in determining the legal status of women. Once you are born as a human being, you by definition obtain all human right, regardless if you belong to a minority group and no one is granted an ability to limit your rights nor culture, nor religion or government.
11 II.The Development of Human Rights.
2.1 The History of Human Rights
Human rights are the fundamental, universal rights and freedoms of all people around the world, regardless of the social system, political regime, forms of state structure and government, without consideration of the international status of the country of which the individual is a citizen. Human rights are natural opportunities that are given to an individual from the moment of birth, ensuring life, human dignity and freedom of activity in all spheres of public life, such as the right to life and person’s honor and dignity. Every human being should have the right to freedom of opinion and expression and personal inviolability, as well as privacy of property and the freedom of movement and choice of residence as an individual.
Along with the concept of “law”, we always refer to the term “freedom” in various contexts: freedom of conscience, freedom of religion, freedom of thought, freedom of speech, etc. In terms of meaning and content, these two concepts can be considered equal.
Human rights reflect the most important aspects of universal human values that every individual must possess, whomever, and wherever. These rights should be universally applicable, belonging to everyone (the international community recognizes the rights of all people), indivisible, interrelated and interdependent. The issues of human rights, fundamental freedoms, democracy and the rule of law are the basis of international nature, since their observance is one of the foundations of the current world order.
12 The idea of human rights has an extremely long history. In the Middle Ages, the legal status of the individual was determined mainly by which particular level of society that individual belonged to; basically, rights were considered more a privilege received by a vassal from the signora than a natural reality.
In the same period of time, the most important documents in this field were adopted, such as the Magna Carta (1215), and the Habeas Corpus Act (1679), which both limited the rights of kings. Moreover, such documents also established that a person has the right to dispose of himself freely and can be punished only by a court verdict. So, this epoch can be described as the start point of the supremacy of the rule of law.
The next important phase in developing the concept of human rights is the era of the
Reformation. During this period, the rights of the individual were proclaimed in matters of faith, giving an additional impetus in the struggle for political rights.
We can describe the 17th century as giving appearance to and development of liberalism.
The main concept of this theory is human rights, which continued to develop further. Well- known followers of the idea of human rights and liberalism, such as Locke, Mill, and
Montesquieu, reflect fundamental human rights: to life, security, freedom, property, and resistance to oppression. These rights have been declared natural, inalienable and inviolable, existing independent of the state, but the state should protect these rights.
The eighteenth century occupies a special place in the history of the development of human rights, due to the creation of such documents as the United States' Declaration of
Independence (1776) and Bill of Rights (1789-1791), and the French Declaration on the
13 Rights of Man and the Citizen (1789). It was precisely these charters that played the most important role in the history, recognition, and consolidation of human rights.
The US Declaration of Independence proclaims: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, which among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” (CHERNILOVSKY, 1996)
The French Declaration on the Rights of Man and the Citizen states: "1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good. 2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression." (CHERNILOVSKY, 1996)
The development of human rights has been a long road, enriched from time to time by a variety of rights and freedoms. But only in the 20th century human did rights start to be recognized as the most important value, as reflected in relevant international documents and doctrines. The modern understanding of human rights includes different thoughts from religious, philosophical, political, and legal doctrines of different eras.
One of the most significant priorities and principles of international law and the UN charter of 1945 is respect of human rights. The inalienability of human rights is clearly defined and recognized by international law due to the continuing work of the United Nations.
Basically, the notion of human rights has occupied a special position in the list of goals and tasks of the UN, as declared in the UN Charter For example, Article 1 of the Charter states
14 that one of the main aims of this organization is to implement international cooperation "in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. This statement is confirmed in
Article 55 of the Charter, which states that the UN promotes "universal respect for, and observance of, human rights and fundamental freedoms for all ". (Charter of the United
Nations, n.d.)
Over the years, the provisions of the UN Charter have been specified in international pacts, which are often considered international standards in the field of human rights. The idea that stands behind these pacts is to create a universal international legal framework for interstate cooperation on human-rights issues. The Universal Declaration of Human Rights was the first legal document adopted by the UN General Assembly, on December 10, 1948.
Although, this document is not mandatory, it carries great moral power and can be regarded as a universal catalog of the rights and freedoms of a man. The adoption of the Universal
Declaration of Human Rights has contributed to the further development of international standards in the field of human rights and the creation of international control tools. The founders if the declaration sought to formulate fundamental rights that are inherent to human nature. The main purpose of the Universal Declaration is to enumerate these rights and establish the basic norms that all countries should observe. Even the preamble of the
Declaration proclaims that all states around the world should strive to implement and guarantee the same basic rights and norms.
However, even at that time, there was an opinion that the Declaration of Human Rights exclusively reflects the ideas of the West. American anthropologist Melville Herskovits prepared a draft Declaration on Human Rights, in which he states: "…Today the problem is
15 complicated by the fact that the Declaration must be of word-wide applicability. It must embrace and recognize the validity of many different ways of life. It will not be convincing to the Indonesian, the African, the Indian, the Chinese, if it lies on the same plane as like documents of an earlier period. The rights of man in the Twentieth Century cannot be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people. " (Danilenko, 2000)
In the years that have passed since the moment the Universal Declaration of Human Rights was adopted, the UN has approved a number of international legal instruments that are related to the protection of human rights. The most important of these tools are the
Covenant on Civil and Political Rights, and the Covenant on Economic, Social and Cultural
Rights. In 1966, the UN General Assembly adopted two new and important documents - the International Covenant on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights. These documents provide a more detailed list of human and citizenship rights. Moreover, the Covenant on Civil and Political Rights provides for the establishment of a Human Rights Committee, responsible for the provisions for compliance with this document, and the implementation of the rights recognized therein. Both pacts could be acknowledged as an international code of human and citizen rights, and member states of the organization should take the necessary measures to ensure the rights and freedoms that are envisaged in these arrangements.
Thus, in accordance with the optional protocol of the Covenant on Civil and Political
Rights, a human rights committee was established in order to examine states’ reports regarding measures provided to implement the conventions, as well as to review citizens’ complaints about violation of their rights. The UN also adopted conventions: "On the
16 Rights of the Child", "On the Elimination of All Forms of Discrimination Against Women",
"On the Elimination of All Forms of Racial Discrimination", "Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment", etc. .
The adoption of these pacts was a turning point in the development of the idea of the universality of human rights - the world community has shifted from activities focused on promoting universal respect and observance of human rights to their effective protection.
2.2 Universality of Human Rights Supporters of the universality of human rights believe in the existence of certain common standards of human rights that are applicable to every society. Their position comes from the fact that human rights are not the product of one culture and these relevant standards are created as a result of the efforts of the entire international society. However, the adherents of cultural relativism assume that each culture can be assessed only on the basis of its own principles, rather than by universal criteria. Human rights, as indicated in international documents, are realized in a particular country, taking into account its cultural (i.e. national and religious) characteristics. In other words, the different historical traditions, backgrounds, psychology and culture of a certain nation can influence the interpretation of human rights, and the practice of their application varies from the facts outlined above.
For the first time, a universal character of human rights was established in the Vienna
Declaration, adopted in June 1993 during the UN World Conference on Human Rights. In particular it states, "All human rights are universal, indivisible, interdependent and interrelated." The international community must respond to the nature of human rights globally, on a fair and equal ground, with the same approach and attention. Although the
17 importance of national and religious specifics and various historical, cultural and religious features must be taken into consideration, states, regardless of their political, economic and cultural systems, have a duty to promote and protect all human rights and fundamental freedoms. (The Vienna Declaration and Program of Action, n.d.) This means that the political, civil, cultural, economic and social rights of humans should be considered in their totality. No one can choose which rights to encourage and protect - they are all equal and apply to everyone. The universality of human rights guarantees the equality of human and civil rights and freedoms, oblivious of a gender, race, nationality, language, origin, property or official status, place of residence, and other circumstances and factors. The restriction of any rights of citizens is prohibited based on social, racial, national, linguistic or religious grounds. Moreover, men and women have equal rights, freedoms and opportunities for their personal realization. The universality of human rights means that the state is responsible to the citizens and the international community in the observance of these obligations, once the state obtains membership of the intergovernmental organization. In the recent past, on the basis of the principle of the sovereignty of states, it was believed that the whole sphere of the relationship between a particular state and its citizens is an internal matter that should be regulated at the national level.
In the modern world, state sovereignty is no longer absolute. It is limited from the outside
(characterized by interdependence of countries and peoples) and finds legal expression in the subordination of states to international law, and in the appearance of international structures with supranational powers. And from the internal side, the sovereignty of the state is restricted as well, even in its own territory, by the inalienable rights and freedoms of the individual and its responsibility to citizens. However, the idea of the universality of
18 human rights is not shared by everyone, and there is another approach to international standards in this area.
Cultural relativism is a concept according to which human values are far from universal, but essentially depends on the cultural and religious characteristics of the nation. In other words, each culture or nation can be assessed only on the grounds of its own principles, rather than universal criteria. Therefore, the protection of human rights is not carried out in accordance with international standards, but at the state’s discretion. Supporters of cultural relativism provide various lines of argument in order to support their concepts and visions of human rights.
One of the approaches of cultural relativism is based on the fact that the Universal
Declaration of Human Rights and other international documents are founded on the
Christian culture and do not correspond to the values of Islamic regions of the world.
Another point of view, separate from religion, focuses more on cultural differences. To be more specific, it seems that human rights reflect the values of Western culture, which is based on individualism, while other cultures rely on other principles, which are not concentrated on individualism, but are more specified by the interests of the family and the community.
19 2.3 Non-discriminability and Equality between Women and Men
Along with the principles of the inalienability, assurance, and inadmissibility of limiting the rights and freedoms mentioned above, the principle of equality also occupies an important position, and especially integral is the principle of equality between men and women.
The United Nations was the first intergovernmental organization to state adherence to the principle of equality between men and women before the law. The Universal Declaration of
Human Rights proclaims: "All human beings are born free and equal in dignity and rights."
The next step was for the UN to adopt more than 100 documents, which are aimed at ensuring gender equality, including: The Convention for the Suppression of the Traffic in
Persons and of the Exploitation of Prostitution of Others (1949); The Convention on the
Political Rights of Women (1952); The Convention on the Nationality of Married Women
(1957); The Convention against Discrimination in Education (1960); International
Covenants on Economic, Social & Cultural Rights, &, Civil and Political Rights (1966).
The Convention on the Elimination of All Forms of Discrimination against Women could be considered one of the most important documents in this field and was adopted by the
United Nations in 1979. This Convention raised for the first time the issue of women's rights as an integral part of human rights.
Article 1 of the Convention provides a legal definition of the term "discrimination against women" and describes it as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition of women, their enjoyment or their actions, irrespective of their marital status, on the basis of gender equality, contrary to human rights and fundamental freedoms in the political, economic,
20 social, cultural, civil or any other field”. (Convention on the Elimination of All Forms of
Discrimination against Women, n.d.)
Moreover, the Convention obliges all states that participate in it:
“-To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;To ensure equal opportunities for men and women so they have all economic, social, cultural, civil, and political rights.”
Two practical recommendations of the Convention are focused on changing existing laws, customs and other frameworks which limit women’s rights. The first recommendation highlights the need to eliminate discrimination in employment, particularly in a hiring process; to ensure equal salaries for work of equal value; to create a ban on "dismissal from work based on pregnancy and maternity leave or discrimination upon dismissal because of marital status." The second recommendation answers the controversy over special quotas for the more successful promotion of women in politics.
The Convention on the Elimination of All Forms of Discrimination against Women is still the most comprehensive and powerful international act in the field of gender equality. It is not uncommonly called the "Women's Convention". By the end of the twentieth century, more than one hundred countries had ratified it. In 1975, the United Nations proclaimed the
21 "Decade of Women" and opened that decade at the First World Conference on Women, in
Mexico City. During this Conference, an important decision was taken regarding the need to develop and adopt a Convention on the Elimination of All Forms of Discrimination against Women; furthermore, an action plan was drawn up in this direction.
The Second World Conference on Women took place in 1980 in Copenhagen.
As a result of this conference, a program of action was adopted for the second half of the "Decade of Women". The Third World Conference summed up this “Decade” in 1985 in Nairobi under the slogan "Equality, Development, and Peace!" This conference adopted a document entitled "Nairobi Forward-looking Strategies". The central theme of the Nairobi Strategies is the equality between men and women. In this document, the meaning of the concept of “equality” is clarified. The document states: “Equality is both a goal and a means whereby individuals are accorded equal treatment under law and equal opportunities to enjoy their rights and to develop their potential talents and skills so that they can participate in national political, economic, social and cultural development and can benefit from its results. For women in particular, equality means the realization of rights that have been denied as a result of cultural, institutional, behavioral and attitudinal discrimination.
Equality is important for development and peace because national and global inequities perpetuate themselves and increase tensions of all types” (Women, n.d.)
Among the most important international instruments in the field of gender equality can also be found in The Vienna Declaration and The Program of Action. Both of these documents were adopted in 1993 during the World Conference on Human
Rights. They also emphasize that women's rights are an integral part of human
22 rights. The Vienna Declaration asserts the importance of the international community's efforts to prevent violence against women. The World Conference on
Human Rights mentions the importance of “the elimination of violence against women in public and private life; the elimination of all forms of sexual harassment, exploitation and trafficking in women; and the elimination of gender bias in the administration of justice” (The Vienna Declaration and Program of Action, n.d.)
In September 1995, the Fourth World Conference on Women was held in Beijing.
The Beijing meeting was preceded by five regional preparatory meetings that were organized in Austria, Argentina, Indonesia, Jordan, and Senegal. During one of these meetings, in Vienna, in October 1994, issues related to the situation of women in
Europe were raised. Particular attention during this meeting was paid to the discussion of the new concept of "parity democracy". This concept was developed by the Committee on Equality between Men and Women and the Department of
Human Rights, which operate within the structure of the Council of Europe. The main slogan of that time was "parity" - the representation of women and men in power structures by the formula of “50/50”Parity democracy has been established because of its supporters' convintion; with the creation of parity democracy, there appeared a real basis for the sustainable development of society. Women would have the same opportunities as men, contributing to social affairs, mainly into the economy, politics and culture. Men, for their part, would be more involved in family matters, spending more time with their children.
As it was assumed that the concept of parity democracy would be discussed at the
Beijing Conference. However, the organizers of the conference found that it was too
23 soon to discuss this as problem in that region. In additionally, the organizers had to take into consideration not only the opinion of Western European countries, but also the positions of Islamic countries and the Holy See (i.e. The Vatican), both of which were actively participating in the preparation process of the Beijing meeting. The gap between the level of demands between the representatives of different women's organizations and UN member states from different regions of the world was much higher and perceptible in Beijing than at previous World Conferences.
In spite of all the difficulties, the Beijing Conference fulfilled all of its tasks. First of all, during this conference the mechanism of cooperation between women's non- governmental organizations and state structures was discussed; moreover, the issue of gender equality was adopted as the main vector of the development of the international community in the 21st century. Secondly, the Beijing Declaration and the Platform for Action were the results of the Beijing Conference, and were also important steps in the field of documents related to gender equality.
Also, at the Beijing Declaration, the participating States agreed on a common statement: "We commit ourselves to the following Platform for Action, ensuring all of our policies and programs will reflect aspects of gender equality." (Beijing
Declaration, n.d.)
A considerable number of governments started following these recommendations of the international community too seriously, that found reflection through special legislative acts and practical measures, in order to establish a balance in the social positions between men and women in their countries. One of the latest acts from the gender equality field was adopted on June 6, 2000, by the National Assembly of
24 France, which calls “...on parity between women and men.” The aim of this act is focused on providing parity, meaning absolutely equal representation of women and men in all elected positions (i.e. 50/50).
Another important tool in the development of laws and government programs regarding gender equality was a new document by the Council of Europe Developed in 1998 by the Department for Equal Opportunities between Men and Women it is called the "Comprehensive Approach to the Equality of Women and Men", or
"Gender Mainstreaming". For the first time, the need for its preparation was addressed during the World Conference in Nairobi. The idea of an "integrated approach" was also supported by the participants of the Beijing Conference.
The document was prepared by the Council of Europe and expands on approaches to gender equality problems, and also introduces the "positive experience" of equalizing the social status of women and men in some of the most advanced countries, such as Denmark, Sweden, the Netherlands, New Zealand, and Portugal.
It emphasizes that mainstreaming is a new strategy for achieving gender equality.
This strategy attempts "to incorporate related aspects of equality between men and women in all spheres and at all levels of political activity". The document clearly identifies the main task of the integrated approach is "to place people at the very core of the policy-making process". (GENDER MAINSTREAMING AN
OVERVIEW, 2002)
A special session of the UN "Beijing + 5" was held in New York in June, 2000, which summed up the results of activities on ensuring gender equality by UN member states. Its resolution confirmed the main recommendations to governments
25 and states that were created at the Beijing meeting.
III. Sharia Law. 3.1 The Basic Concept of Sharia Law
Sharia (Islamic law) is an essential part of Islam teachings. According to the legal encyclopedia "Sharia is a set of religious and legal norms that are compiled on the basis of the Quran and Sunnah (Muslim holy traditions), containing the norms of state, hereditary, criminal and marriage law." (The basic legal systems of our time (comparative law), 1967)
In other words, Sharia law is a legal, inseparable prescription of the theology of Islam that is closely related to Islam’s religious-mystical notions. Islam considers these legal frameworks as a part of a single divine law and order. Hence, such decrees and prohibitions that constitute Sharia norms are also prescribed to divine significance.
Shari'ah has strictly developed as a confessional right. Especially at the beginning of the development process, the doctrinal and normative part (fiqh) of Sharia has absorbed not only legal provisions, but also religious dogma and morals. As a result, the norms of
Shariah (i.e. rules and regulations), on the one hand, have regulated the public "human" relationship, and on the other hand, have determined the relationship between Muslims and
Allah (ibadat) by daily prayers, the observance of fasting and burial rules etc. It is not by chance that the distinguishing feature of Shariah norms is that they apply only to Muslims and between Muslims and do not spread to Non-Muslims.
The introduction of the divine conduct and the religious-moral principle into Sharia has reflected on the peculiarity of the legal understanding, as well as the evaluation of lawful and unlawful behavior. Thus, the close line between the law and theology of Islam has
26 found its expression in the establishment of the five types of Muslim actions according to
Sharia, giving equal legal and moral-religious meaning:
-Mandatory;
-Recommended;
-Allowed;
-Pre-emptive, but not punishing;
-Prohibited and punishable.
The recognition of the divine predestination in Sharia has inevitably engendered the overriding issue of Muslim free will and its limits. A big number of religious and philosophical schools have taken a different position according to these occasions. So, one of these schools (jabariets) has generally denied the free will of man.
The Qur'an especially stresses the need for the Muslim to show patience and humility:
"Patience, Allah is with the patient" (8.48). (The basic legal systems of our time
(comparative law), 1967) In the same way according to Sharia, one of the Muslim’s duties is to obey the Caliph and state authority: "Obey Allah and obey the messenger and the possessors of authority among you" (4.62). (The basic legal systems of our time
(comparative law), 1967)
One of the characteristic features of the medieval Muslim law was its integrity. Along with an acceptance of the notion of a single God - Allah - the idea of a single legal order with a universal context was established as well. The Muslim law first of all was focused on the confessional principle, not a territorial one. A Muslim, who lived abroad had do abide by
Sharia and remain faithful to Islam. Gradually, with the spread of Islam and its
27 transformation into one of the world’s main religions, Sharia started to be considered a kind of legal system of the world.
As a confessional law, Sharia differed from canon law (which used to be common in
European countries) by regulating not only strictly defined spheres of public and church life, but acted as an all-encompassing and comprehensive regulatory system, established in a number of Asian and African countries. Over time, Sharia norms passed beyond the Near and Middle East, extending its influence to Central Asia and parts of Transcaucasia; to
North, in part to East and West Africa; and to a large number of South-East Asian countries. The most important source of Sharia is the Qur'an (from Arabic al-kuran -
"reading aloud", or "edification") – a Muslim’s sacred book, consisting of parables, prayers and sermons that were presented by Muhammad between 610 and 632 AD.
Most of the provisions of Quran are of a casual nature and specific interpretations were given by the prophet for special cases. But a considerable number of determinations have a very vague significance and can acquire different interpretations depending on the attached content. In subsequent judicial-theological practice and in legal doctrines, as a result of fairly loose interpretations, they were expressed in contradictory, and often mutually exclusive, legal regulations.
Another authoritative and obligatory source of law for all Muslims was the Sunnah ("sacred tradition"), consisting of numerous stories (hadiths) about the judgments and deeds of
Muhammad. The hadiths themselves also represent a variety of legal exhortations, which reflect the development of social relations in Arab society. The final editing of the hadith was carried out in the 9th century. The complete norms of marriage and inheritance, evidentiary and judicial law, rules on slaves, etc. are derived from Sunnah. The Hadith
28 Sunnah, despite modifications, contains a lot of contradictory provisions, and the choice of the most "credible" was entirely at the prerogative of the theologian-jurists and judges.
Thus, the Sunnah is a set of the records describing Muhammad’s life, his words and deeds;
Furthermore, in a broad sense, the Sunnah is a collection of good customs, traditional institutions, complementing the Quran and honored along with it as a source of information about what behavior or opinion is pious and correct.
In third place in the hierarchy of sources of Islamic law was occupied by ijma, which was regarded as the "general consensus among the Muslim community". Along with the Quran and the Sunnah, ijma belonged to an authoritative group of Sharia sources. Practically, the ijma consisted of concurring opinions about religious and legal issues, which were prescribed by Muhammad’s fellow believers or later by the most influential Muslim theologian-jurists (imams, muftis, and mujatahids). Basically, ijma was developed as a set of interpretations of the Quran or Sunnah texts, as well as a set of new norms that were no longer associated with Muhammad. They provided independent rules of conduct and became mandatory due to the unanimous support of muftis and mujatahids.
According to the main idea of ijma in the Sharia, the development was that it allowed the ruling religious elite of the Arab Caliphate to create new legal norms which were adapted to the changing conditions of feudal society, taking into account the specifics of the conquered countries.
One of the most controversial sources of Islamic law was kyyas, which caused acute disagreements between different directions, considered the solution of legal cases by analogy. According to the kiyasu, the rule established in the Quran, Sunnah or ijma can be applied to a case that is not explicitly related to these sources of law. The kiyas were not
29 only the quickest way to settle social relations, but also helped to liberate Sharia on a number of occasions from theological protests. However, in the hands of Muslim judges, kyyas often became a weapon of outright tyranny. As an additional source of law, Sharia also allowed local customs that were not directly included in Muslim law, during the process of its formation. Moreover, those customs did not directly contradict the principles and norms of Islamic law. At the same time, the legal customs of Arab society were recognized, as were the customs of numerous nations gained as a result of Arab conquests.
In conclusion, it is worth mentioning that Sharia norms have not lost their relevance in our days. In 28 countries where Islam is recognized as the state or official religion (Iran, Iraq,
Kuwait, Morocco, Saudi Arabia Arabia, Pakistan, etc.), the norms of Shari'a, even nowadays, directly regulate or have a significant impact on the public regulation of a wide range of public relations in various functioning spheres of society and the state.
3.2 Sharia Law in Terms of Family Such a concept as "marriage" (aqd) in Sharia is defined as a contract by which a woman ceases to be an outsider, or "forbidden", for the man with whom she entered into a union of marriage. In Muslim society, according to religious obligations, marriage should be accompanied by the birth of children, and celibacy is considered a regrettable condition.
The Koran, like the Talmud, allows the believer to have four wives at the same time. The
Surah of the Koran, which is called "Women," states: “marry those that please you of
[other] women, two or three or four. But if you fear that you will not be just, then [marry only] one…”. (DYAKONOV, 1997) It is a rare occasion, when one husband has three or more wives because he is obliged to support all of them.
30 Furthermore, the Sharia demands that an adult girl should be given in marriage as soon as possible. On this occasion, there is a hadith based on Muhammad’s statement, that says:
"Happy is the father who gave his daughter in marriage before she had her first menstruation." (DYAKONOV, 1997) Permanent marriage is subject to detailed regulation, which is characterized by the interlacement of legal ideas and Muslim customs. An open obscenity in the definition of the goals of permanent marriage (physical possession and childbearing), as well as the reality of established norms, indicate the toughness of the patriarchal environment.
Along with a permanent marriage, a temporary marriage is also granted. Sharia accepts temporary marriage, in particular cases, where there is no intention of intimacy. This usually happens when an old woman and an old man enter into a marriage contract in order to take care of each other, or when an elderly woman intends to take care of a lonely man of the same age as her - preparing his food, doing household chores etc. - , because Islam forbids any kind of woman to stay in the territory of an unrelated man. According to Sharia, if the wife at the moment of signing the temporary marriage contract stipulates that the husband should not approach her, the marriage is deemed valid and the husband satisfies all other duties of family life besides physical intimacy. Both of these types of marriage are legitimate from the Sharia point of view.
In order to conclude a marriage contract, Sharia requires the following four conditions:
1. The marriage formula must be pronounced in the correct Arabic language, an exception is only allowed if the bride or groom or their confidants are not familiar with this language
- in this case it is permissible to read the formula in another language.
31 2. Those who read the formula (the groom, the bride or their confidants) must be of legal age and legally sane.
3. During the formula pronouncement, it is necessary to mention the names of the bride and groom.
4. The bride and groom must be willing to enter into marriage, and should not be forced to marry. If the bride keeps silent, the marriage contract is recognized as true.
In order to conclude a marriage between two parties, the desire of a man or a woman is not enough. Both types of marriage (permanent and temporary) require the reading of the marriage formula and the concluding of a marriage contract.
The marriage formula could possibly be read by the bride and groom or their confidants, who can be men and women. Before the marriage contract, the groom and the bride are forbidden to see each other, even secretly. As a rule, the formula for marriage should be read in Arabic (but there some exceptions do exist, one of which is mentioned above), first by the bride, then by the groom. "I consider myself your wife by a certain dowry," says the bride. "I accept this marriage," the groom replies. (PONAMORYOV, 1982) The reading of the formula by proxies is also carried out in the indicated form, as the confidant from the bride’s side speaks first, then the groom’s.
Socio-economic needs concerning family-marriage relations occupy the main position in the legal norms of Sharia. Sharia imposes a number of important duties on married women.
They do not have the right to go out without the husband's permission; furthermore, they cannot without special reasons refuse the husband sexual intercourse. In addition, women are responsible for housekeeping, cooking and clothing for the husband. For instance, if a
32 married woman refuses to fulfill all these duties, her husband has the legal right to refuse to provide her with food, an apartment etc. According to Sharia law, the husband has the right to punish his wife for disobedience, but he has no right to her mahr, which is her property.
If the wife fulfills all her duties and requirements before her husband, and he does not give her money for her expenses and needs, if possible, the wife can extract her expenses without the husband's permission from his property. If this is not possible, and she is compelled to procure for herself the means of subsistence, she need not obey her husband.
The husband is obliged to spend every fourth night with his wife, with whom he is in constant legal marriage. He does not have the right not to visit his lawful wife for more than four months.If the wife has at least once agreed to be with her husband in intimate relations, later she has no right to refuse him in this regard.
If the husband, during the marriage process, sets a condition to marry a girl, and such is not so, he has the right to dissolve the marriage. If a man, in the absence of his wife, has violated Islam’s prohibition, such as having an intimate relationship with another unmarried woman, some scholars recommend that he should marry her. A Muslim woman by Sharia has no right to marry a kafir ("unfaithful"), i.e. a Christian or a Jew. However, a
Muslim man in such a situation has the right to marry a Christian or a Jew, hoping that the women will accept Islam, but Sharia also does not force Christians or Jews to renounce their religions if they become wives of a Muslim. Sharia law concerning the family is mainly aimed at preventing extramarital affairs and the birth of illegitimate children. In
Islam, an illegitimate child does not have any hereditary rights to his/her father. However, in other aspects, an illegitimate child is not infringed, because according to Sharia, no one is responsible for the actions of other people, including parents or children. A child’s birth
33 from an unknown father is condemned to the highest extent by the moral code of Islam, although Muslim law does not require the punishment of the women. However, the moral and ethical norms of Islam create an unbearable, humiliating environment around the family such a woman. In most cases, the parents or relatives of such a woman, in order to remove the associated shame, usually resort to her physical destruction; if they become aware of the man who has dishonored their family, they pursue him to seek punishment.
Often such cases lead to tribal and clan bloodshed.
With regard to the divorce process, according to the provisions of Sharia on family- marriage relations, it is worth mentioning that divorce in Muslim legislation, in comparison with other secular or religious legislation around the world, is remarkable for its amazing simplicity and the absence of any legal formalities. It is very interesting that Islam, which is so jealously struggling against celibacy and monasticism, creates very simple conditions for marriage dissolution. The paradox is that, despite such a simple legal mechanism for divorce, Muslims very rarely practice it, due to strict Islamic moral principles. It is condemned by Sharia to be divorced from one's wife, leaving the family, the children without good reasons. A man who practices frequent marriage and divorce automatically loses his prestige and respect in Muslim society.
According to the Islamic law, a legal basis for the dissolution of a marriage contract can be considered in accordance with seven types of female defects and deficiencies (i.e. physical and mental): insanity, blindness, leprosy, infertility , laziness, aphza (the combination of the anal and urinary canals during menstrual), and defective sexual organs of the woman that makes sexual intercourse impossible.
34 A woman also has the right to file for divorce if after marriage she finds out that her husband is insane, suffers from male impotence, is castrated, or has a disease that makes sexual intercourse impossible.
A couple with the listed deficiencies or defects, such as talak usually breaks up without the formalities of divorce. Taking into the account the given ethical standards and psychological factors, Sharia demands that reasons for the divorce in any case not be announced. Marriage dissolution should be carried out in the same way as a marriage contract, via the process of reading the formula in Arabic. If at the conclusion of a marriage contract the bride is the first one who reads the formula, then in the divorce process, the husband first pronounces it. The formula of Muslim divorce in Arabic sounds like this: "My wife Fatima is free". (PONAMORYOV, 1982) Moreover, the divorce process can also be arranged by the husband's lawyer. Since the husband's desire to get a divorce, according to
Sharia, cannot be rejected, the wife can only accept the reality. As a rule, she has the right to protest only if the reason for the divorce concerns an accusation of treason. In this case, the husband is required to provide witnesses testimony, confirming the guilt of his wife. If the husband is not able to prove the guilt of his wife, he will receive punishment for slander against a Muslim woman.
According to the Shari'ah, there are two main types of divorce:
- Full divorce (talak banin);
- Divorce with the possibility of a return to the previous family relationships (talak raji)
At first sight, the easiest way to divorce, and the heaviest in terms of consequences, is usually considers the so-called triple talak. Once the husband repeats in anger three times
35 "you are not my wife anymore", (PONAMORYOV, 1982) spouses immediately become taboo for each other, according to some Muslim scholars. If the wife wishes to restore the family, she must also have married another man, divorced him and only then can she can return to her former husband.
The so-called talak raji is literally not the final divorce, due to the term "rajah", which means, "returning." Therefore, this kind of divorce means that the husband, having granted divorce to his former wife, may repent and express a desire to return or renew relations between them; the husband in such a divorce does not lose the right to reconcile with his wife and return to the family. As a rule, during an Idda period in a rajah divorce, the wife does not leave her husband's house.
Hulu is another type of divorce, in which the wife must financially compensate her husband for a divorce, rewarding him for her freedom. If the husband agrees with such a compromise divorce, Sharia considers it lawful.
Divorce by abdication (mubarat) is somehow similar to the hulu divorce. The only difference is that when spouses divorce in the mubarat way, both should agree to the divorce, but in this case, the husband has the right to be the first who implies conditions and requires material rewards.
The Sharia rules of divorce take into consideration even the smallest details. Thus, it stipulates that a woman, who has received a divorce or is a widow, cannot immediately enter into a new marriage; she can do so when some period of time passes, a period call
Idda. One of the iddah’s goals is to discover whether a woman who is widowed or divorced is pregnant. Another goal is to facilitate the restoration of the family in case of a reckless
36 divorce. In some cases, Shariah acts in accordance with the statements of the ancients:
"What can be justified from a legal point of view cannot always be justified from the point of view of moral norms." (GRYAZNEVICH, 1984) For example, if a man has divorced a woman from her husband by deceit and then married her, this divorce is considered correct from the legal standpoint of Sharia law, but according to the ethical standards of Islam, it is a grave sin. In addition, since not all immoral acts can be fixed in legislation, Sharia, in many cases, simply refers to a curse. So in this case, he (the former husband) sends a curse to both to the seducer husband and to the woman who agrees to the sin.
Sharia fully regulates all spheres of Muslim life. In the canons of Sharia, a number of ethical norms have been developed from topics relating to the feeding of an infant until fully two years old, to a set of norms regarding the behavior of a widow during a mourning period, when she is forbidden to wear bright dresses, a surma, or decorate herself or her apartment. Even the slightest mistake that violates rules of mourning is considered unacceptable. The existence of such norms prove how deeply Sharia penetrates all spheres of family-household relations.
3.3 Women's Rights under Sharia Law In this section of my thesis, I, as the author, would like to approach the study of the issue of women's rights in accordance with Sharia law from a more practical perspective. The previous sections of this work have been of a more theoretical nature; when I selected literature as research in the writing these sections, I did not meet so many diametrically opposite points of view, as may exist among many misleading approaches to the interpretation of Muslim women’s rights by different scientists, historians of law, worshipers and, directly, representatives of Islamic culture. During my acquaintance with
37 various bibliographic sources, monographs, and excerpts from scientific articles, I have been faced with the following statements of Islamic scholars:
• Sharia law in the part concerning women is the legal norms of Islamic family law.
• Islam was the first civilization that ensured and guaranteed the rights of women.
• Muhammad gave the world a perfect example of how protected women are in Islam.
• Muslim women are treasures and, like treasures, they need to be protected from the vices of the kafirs’ world.
• The rights of Muslim women are given by Allah.
However, in the work of the famous expert in the field of political Islam, Dr. Bill Warnen,
(Sharia for non-Muslims, n.d.) I have found one statistical study, the essence of which was to analyze every stanza of the Qur'an and every hadeeth and evaluate them from the perspective of Muslim women's position in society. There exist several stanzas which praise/ glorify mothers, placing them above men. There are many stanzas in which it is stated that on Judgment Day, women and men will be judged equally. In the process following table creation, the whole text was selected on the grounds of references to women in the Quran and hadith. Then, this data was sorted into three categories based on the attitude towards women: high, equal, low.
Data from the Quran (the whole text Data from hadiths (the number
of the Quran = 12066 words) of hadiths)
High position 5.3% 0.6%
Equal position 23% 10%
38 Low position 71% 89%
Table 1 References to women in the Quran and hadith
The results of this study finally pushed me to form my own independent opinion about the rights of Muslim women according to the laws, by independently studying the sources of
Sharia. I quoted some excerpts from these sources below to illustrate how the rights of
Muslim women are trampled on and how Shariah law assigns them a humiliating role in society.
Wife Beating.
Quran 4.34: “Men (those who are able to carry out their responsibilities) are the protectors and maintainers of women inasmuch as God has endowed some people (in some respects) with greater capacity than others, and inasmuch as they (the men) spend of their wealth (for the family's maintenance). Good, righteous women are the devoted ones (to God) and observant (of their husbands' rights), guarding the secrets (family honor and property, their chastity, and their husband's rights, especially where there is none to see them, and in the absence of men,) as God guards and keeps secrets undisclosed (what should be guarded and private). As for those women from whose determined disobedience and breach of their marital obligations you have reason to fear, admonish them (to do what is right); then, (if that proves to be of no avail), remain apart from them in beds; then (if that too proves to be of no avail), beat them lightly (without beating them in their faces). Then, if they obey you
(in your directing them to observe God's law and their marital obligations), do not seek ways against them (to harm them). (Be ever mindful that) God is indeed All-Exalted, All-
Great.” (KRACHKOVSKY, 1986)
39 Sharia: Communication with a Rebellious Wife m10.12 If the husband notices signs of rebelliousness in the wife – whether it be in words when she answers him coldly though she spoke so kindly earlier; or he calls her to bed, and she refuses though she behaved in a different way earlier; or he notices it in her acts when she refuses to communicate with him even though earlier she was kind and cheerful – he warns her with words, doesn't move away from her and doesn't beat her as she may have justification.
The warning words can be: "Be afraid of Allah, I have rights concerning you",; or it is possible to explain that her rebelliousness cancels his duty to support her and to observe her position among other wives; or it is possible to say: "To submit to me – is your religious duty".
If she is rebellious, he has no intimate proximity with her nor does he speak with her, or he can hit her, but so as not to cause injury, leaving no bruises, broken bones, nor wounds and that blood did not flow. It is illegal to hit her in the face. He can beat her if she has shown rebelliousness only once or several times; however, the fairer option is that he can hit her only if she has not obeyed him several times. (Sharia. Four sources and four components, n.d.)
Isaak 969 It [Muhammad] has also told them that men have the right to their wives, and women have the right to their men. Wives must never be unfaithful to their husbands or perform actions of a sexual nature with any others. If they do so, they should be placed in a separate room and beaten lightly. If they abstain from what is forbidden, they have the right
40 to food and clothes. Men have to rule over women softly because they are captives of men and have no authority over themselves. (Sharia. Four sources and four components, n.d.)
[Abu Daud 11, 2142] Muhammad has said: Do not ask a man why he has beaten his wife.
(Sharia. Four sources and four components, n.d.)
[Bukhari 7, 62,132] the Prophet has said: "None of you should beat your wife the same way as you beat your slave, and then on the same day to have with her intimate relations". Most of the inhabitants of Hell will be women. (Sharia. Four sources and four components, n.d.)
The Doctrine on Women
According to Sharia law, women have no full legal capacity, for example: o22.1 Indispensable conditions to be a judge in Islam: a) To be a free man (WORNER, 2010)
O4.9 Indemnification for murdering a woman or harming her health is half the compensation the subject is to pay for the same actions in relation to a man. (WORNER,
2010)
[Bukhari 3, 48,826] Muhammad has asked a woman: "It is right that the testimony of a female eyewitness costs half that of a man?" The woman replied: "Yes". He then said: "It is because a woman's mind is defective". (WORNER, 2010)
L10.3 They divide the general share in such a way that one man receives that of two women. (WORNER, 2010)
4:11 concerning your children, Allah commands in the Koran: The male gets a share equal to that of two females. (KRACHKOVSKY, 1986)
41 This Hadith Equates Camels and Slaves to Women.
[Abu Daud 11, 2155] Muhammad has said: If which of you marries a woman or buys a slave, he has to say: "Oh, Allah, I ask you about the benefit in her and in that temper which you have allocated her. I look to you for protection against the evil in her and in that temper which you have allocated her". When buying a camel, grasp it by a hump and say the same.
(The Hadith Encyclopedia, n.d.)
Women are Disadvantaged Compared to Men with Respect to Intelligence and
Religion.
[Bukhari1, 6,301] On the way to prayer, Muhammad passed a group of women and said:
"Women, do charity work and donate money to the less fortunate, because I have witnessed that most of the people in Hell are women. They asked him: "Why it so?"
He answered: "You swear too much and you don't show gratitude to your husbands. I have never met anybody as stupid or ignorant concerning religion as women. Many of you can bring down even a circumspect and clever person".
They answered: "What do we lack in thought or belief?"
Muhammad replied: "Isn't it so that the testimony of one man is equal to that of two women?"
After they confirmed that it was the truth, Muhammad said: "This shows that women do not have enough brain. Does not it mean also so that women can neither pray nor observe lent
[during their periods?" They replied that it is also the truth.
42 Then Muhammad told them: "It shows that women do not have enough belief". (The
Hadith Encyclopedia, n.d.)
The Testimony of a Woman is Equal to Half that of a Man.
Quran 2.282 “O you who believe! When you contract a debt between you for a fixed term, record it in writing. Let a scribe write it down between you justly, and let no scribe refuse to write it down: as God has taught him (through the Qur'ān and His Messenger), so let him write. And let the debtor dictate, and let him avoid disobeying God, his Lord (Who created him and brought him up with mercy and grace) and curtail no part of it. If the debtor be weak of mind or body, or incapable of dictating, let his guardian dictate justly. And call upon two (Muslim) men among you as witnesses. If two men are not there, then let there be one man and two women, 161 from among those of you who are approved as witnesses, if either of the two women errs (through forgetfulness), the other may remind her. Let the witnesses not refuse when they are summoned (to give evidence). And (you, O scribes) be not loath to write down (the contract), whether it be small or great, with the term of the contract. Your doing so (O you who believe), is more equitable in the sight of God, more upright for testimony, and more likely not to be in doubt. If it be a matter of buying and selling concluded on the spot, then there will be no blame on you if you do not write it down; but do take witnesses when you settle commercial transactions with one another, and let no harm be done to either scribe or witness (nor let either of them act in a way to injure the parties). If you act (in a way to harm either party, the scribe or witnesses), indeed it will be a transgression on your part. (Always) act in due reverence to God and try to attain piety. God teaches you (whatever you need in life and the path you must follow in every matter); God has full knowledge of everything„ (KRACHKOVSKY, 1986)
43
o12.0 Punishment for Communication out of Marriage. o12.6 If punishment consists of stoning, it is necessary to throw stones at them, regardless of the weather or whether they are sick. A pregnant woman should not be killed with stones until she no longer is needed to breast feed him. (WORNER, 2010)
[Muslim 017, 4206] … A woman came to Muhammad and told him: "Allah's envoy, I have performed marital infidelity" [...] when she was brought, she came with a child wrapped in a rag and said: "This is the child to whom I gave birth". He replied: "Leave and raise him until he leaves your breast". After the woman raised him, she came with the child who held a piece of bread in his hand. She said: "Allah's apostle, here he is, I have raised him, and now he eats solid food". Muhammad entrusted the child to the care of one of the Muslims and then announced the punishment. She was placed up to her breasts in a ditch, and then he ordered the people to stone her to death. (WORNER, 2010)
Murder for Honor
Murder for honor isn't included directly in the doctrine of Sharia. Sharia states that a woman is of lower status than a man, and allows him to beat her to establish the power of the man, but doesn't allocate honor killing any legal status. However, the punishment for the murder of an unfaithful spouse isn't provided: o5.4 There is no atonement of guilt for a murder renounced by Islam, for robbers or those found guilty of adultery… (Political and legal doctrine of islam: theoretical aspect, n.d.) e12.8... to the unworthy (who can be killed) belong...those found guilty of adultery...
(Political and legal doctrine of islam: theoretical aspect, n.d.)
44 It seems that these provisions contain equal punishments for men and women; however, the man has many legal ways to have intimate relations with several women at once, whereas a woman is strictly limited in this plan to her husband. From this it follows that many more women can be killed on this basis. The man dominates the woman, and his status in society depends on how his women behave. Gkhirakh is a sacred jealousy, and even Allah has a gkhirakh. Gkhirakh is also self-esteem and a basis for honor killings. Notice that in the following Hadith, Sayed's threat to kill a man who was with his wife isn't criticized, but is supported. Violence to protect Muslim gkhirakh is supported by Sharia.
[Bukhari 8, 82,829; Bukhari 9, 93,512] Said ibn Ubada said: "If I saw a man with my wife,
I would hit him with the edge of my sword". This news reached Muhammad, and he then told: "People, you are amazed by Said's gkhirakh (self-esteem). By Allah's will, my gkhirakh is more than his is, and Allah's gkhirakh is more than mine is, and because of
Allah's gkhirakh, He made shameful actions and sins illegal, both visible and secret.
(WORNER, 2010)
IV. Islamic Countries and the Concept of Human Rights 4.1 Early Formulation and Influence
A concept such as "constitutionalism" is often considered part of legal theory and a practice of a constitutional arrangement, which is based on Western liberal -democratic values. On this basis, politicians, journalists and others often use the phrase “Western constitutionalism”. However, according to legal literature, a broad meaning of this concept is taken into account in both theory and practice in organizing state and public life in accordance with the constitution. The main feature of constitutionalism is not just the
45 existence of a constitution, but mostly a real link between public authorities, based on certain norms. On the grounds of various legal traditions, constitutionalism acquires specific features and characteristics. Within the framework of the Islamic concept of the state, "Islamic constitutionalism" takes shape. The roots of Islamic constitutionalism go back to the initial period of the formation of the Islamic community. The most important role in the formation of its principles belongs to the Prophet Muhammad.
The Ummah Charter, also known as the "Constitution of Medina", is an early political and legal document of Islam, and, in fact, the first Islamic legislative act that established the basis of Islamic statehood. The Constitution of Medina regulated the relationship among members of the Islamic Umma (community), primarily between the Muhajirs (settlers from
Mecca) and the Ansar (inhabitants of Medina), and between Muslims and non-Muslims who are a part of the community. In accordance with the Constitution of Medina, all residents - Muslims, Jews and Pagans - were treated as a single whole, and each enjoyed appropriate rights, regardless of tribal affiliation. This document can be described as a normative legal act that laid the foundations of Islamic constitutionalism.
During the Rightly-Guided Caliphs era (632-661 gg.), most of the main principles of the
Islamic state system was established, by which Islamic constitutionalism became stronger: all activities by governments and heads (caliphs) of an Islamic state should be in accordance with the basic principles of the Islamic religion, which are simultaneously the principles of Islamic law; the principle of the Caliph’s election; the principle of the accountability of the Caliph in front of the Ummah; the principle of consultation; the principle of justice; The possibility of disobedience to the Caliph’s will in case of his retreat from Islam. With the end of the reign of the Rightly-Guided Caliphs, power transferred to
46 the Umayyad dynasty (661-750) and then to the Abbasidan (750-1258). Because of these changes, some of the principles of Islamic constitutionalism largely disappeared, such as the principle of the caliph’s election, instead of which a hereditary monarchy existed for centuries. Analyzing the way in which Islamic doctrines regard the creation and evolution of the state, it should be mentioned that in the first centuries of Islam (VII-X cc.), state power problems were not the focus of Islamic legal doctrine. From the beginning, the
Islamic state was considered a theocratic state, so the caliphate from the first days of its existence was based on the principle of unity of spiritual and secular power, represented by the head of the Islamic state – the Caliph. In this context, the issues of inheriting power and the problem of its transfer were at the fore. According to the Islamic concept of the state, the forms of transfer of power include the seizure of power, the appointment of an heir, the election of a caliph by the shura (council), the election of a caliph by the whole community, and the so-called appointment of an Imam of Allah.
Further evolution of Islamic law and improvement of Islamic constitutionalism was seen during the period of the Ottoman Empire. Although during the initial period of its existence, Islamic law was in a stagnant condition, in the second half of the XIX century, the process of "Islamic Reformation" began. The most important stage in the history of the
Ottoman Empire, which was of fundamental importance in the development process of
Islamic law, is the period when, under the pressure of political, economic and social factors, the process of social, political and legal reformation started. These reforms were made due to both internal and external factors. Another important point in the evolution of
Islamic law belongs to the entered into force Constitution in 1876, this development slightly restricted the rights of the Sultan, and proclaimed the principles of personal
47 freedom and equality of all, irrespective of religious belief; the complete security of the individual and his/her property; the inviolability of the home; the proportional distribution of taxes; the prohibition of fines and forfeitures; the guaranteeing of freedom of activity in trade, industry and agriculture; freedom of the press; and the transparency of the courts.
This document also defined the organizational structure and functions of a bicameral parliament. In the early twentieth century, the positions of Islamic law were significantly weakened, a step associated with profound political and economic transformations throughout Islamic civilization, among the most important of which was the aim to abolish the caliphate in 1924, and to remove Islam as the state religion, as it had been in the former
Ottoman Empire. Nevertheless, the second half of the twentieth century is characterized by the growing influence of Islamic law - there was a tendency to return to the original Islamic principles, a process called Islamization, which covered the political, economic, social, cultural and legal spheres of public life. Islam was considered a universal regulatory system, capable of solving accumulating political and socio-economic problems. These trends have intensified since the early 1970s. A major impetus was the Islamic Revolution in Iran in 1979, the result of which was the reform of Iran's state legal institutions. The aim of the reforms was to bring the entire legal framework in line with Islamic law. The first step in this direction was the adoption of a new constitution, the fourth article of which proclaimed that the country's criminal laws should be consistent with the principles of
Islam, and article number 156 fixed the rules for applying Shariah norms to criminal offenses.
48 4.2 Modern Islamic Constitutionalism and the tendencies of Its Transformation.
There are many Islamic communities in over 120 countries. In 35 states, Muslims constitute the majority of the population. In 28 Islamic countries, such as Afghanistan, Egypt, Saudi
Arabia, Morocco, Kuwait, Iran, Iraq, and Pakistan, Islam is the state religion. The constitutions of modern Islamic states contain rules regulating to the structure of the state, the principles of organization, and the procedure for the forming and functioning of the state mechanism, the electoral system, etc. Many constitutional principles and norms in terms of both formal features and content are similar to those contained in the constitutions of Western states, since they were borrowed as a result of legal acculturation that took place after the collapse of colonial systems, when Islamic countries formed their own national legal systems. However, the principles of classical Islamic law continue to play a dominant role in the system of constitutional principles in these states, ensuring the functioning of any such borrowed norms in accordance with Islam. Thus, for example, the Constitution of the Republic of Pakistan stipulates that "all existing laws must be created in accordance with the prescriptions of Islam, as they are established in the sacred Koran and
Sunnah...and no law can be passed if it contradicts such prescriptions." (The Constitution of
Pakistan, n.d.)
The constitutions of modern Islamic states also reflect so-called "pain points" of modern civil societies. For a many decades, there was an absence of many civil rights and freedoms that are an integral part of human rights, as declared by international Islamic legal acts, including the Universal Islamic Declaration of Human Rights, 1981; the Cairo Declaration on Human Rights in Islam in, 1990; and the Arab Charter on Human Rights, 1994. The constitutional norms of modern Islamic states are enshrined in the provisions regardless of
49 religion (Article 7 of the Constitutional Declaration of the Arab Republic of Egypt), equality in rights and duties, regardless of religion (Article 33, paragraph 3 of the
Constitution of the Syrian Arab Republic), respect from the state side to other religions - ensuring freedom to perform rituals that do not violate public order - and protect the personal status of religious communities (Article 3 of the Constitution of the Syrian Arab
Republic).
The constitutional legislation of many Islamic countries contains the so-called
"constitutional triad", consisting of three main provisions: the consolidation of Islam as a state religion at the constitutional level, the recognition of the source of legislation behind
Sharia and the belonging of the head of state to the Islamic religion. Nowadays, these provisions have to date represented a real mechanism that ensures the operation of Islamic law and its compliance with the principles of the activities of all institutions of the modern
Islamic state. Such provisions are contained, for example, in the constitutions of Jordan, the
United Arab Emirates, Tunisia, Qatar, and Pakistan. Thus, according to the Afghan
Constitution of 2004, Islam has the status of official state religion. In Article 3 the
Constitution proclaims that "in Afghanistan, no law that contradicts the sacred religion of
Islam can be adopted." (The Constitution of Afghanistan, n.d.)
Legislation of modern Islamic states contain a number of contradictions stemming from the consolidation of Islam as their state religion in their constitutions, and the existence in the sectoral legislation of norms that are contrary to the Islamic legal principles. Thus, in
Tunisia for example, polygamy is legally banned and Islamic courts have been abolished.
This is evidenced by a number of articles in the Constitution of Tunisia. Determining the nature of the judiciary, it determines that the decision of the court is pronounced on behalf
50 of the people and is carried out on behalf of the President of the Republic, and Article 65, fixing the independence of the judiciary, proclaims that in the exercise of their functions, judges are subject only to the law. The Moroccan Family Code completely abolishes custody of a married woman, and abolishes the responsibility of an unmarried woman if she gives birth to a child, and gives her the opportunity to register and name the child. In the legal systems of these states, norms and principles of Islamic law are restricted and ousted from the spheres of legal regulation. As a result of these changes, these contradictions can be eliminated. Constitutional reforms in Islamic states will not only strengthen the basic constitutional provisions that ensure the operation of Islamic law, but also create mechanisms for their implementation and concretization through sectoral legislation - criminal, civil, family, etc.
In most Islamic states, special bodies also exercise religious control over law-making activities for the purpose of checking compliance of the adopted acts against fundamental sources of the right function of classical Islamic. In Pakistan, for example, this function is performed by the Council of Islamic Ideology and the Federal Court of Sharia.
Despite the general tendency to Islamize the legal systems of Islamic states, new political realities force both leaders of the states, and the various opposition, to consider the geopolitical situation that has developed in the modern world. It means that the
Islamization of legal systems cannot be carried out without taking into account both the general political situation in the world, and the internal processes in their civil societies. An example of these are Islamic forces, which have come to power as a result of elections in
Egypt. In spite of the fact that the President of Egypt is the representative of the Freedom and Justice Party — a political wing of the Muslim Brotherhood - after becoming president,
51 he proclaimed a course for the secular state caused not only by the need to implement election pledges, but also to resist opposition, and pressure from the West. Concurrently
Article 2 of the Constitution of Egypt still fixes Islam as the state religion and Islamic rights as a legislation source.
It should be especially noted that the direct factors influencing the characteristics of the transformation of constitutionalism in each Islamic state are both internal and external - the existing contradictions within the civil societies of Islamic states are among the internal factors, and the specifics of the interactions between each state and the international community is one of the major external factors. Furthermore, the different levels of social, economic and political developments, and the intensity of communication with other states and regional and international organizations will affect the speed and scale of this transformation, along with other features within specific Islamic states.
4.3 Women's Rights. Today, despite the existing norms and laws in Islamic countries, leaders continue to keep to the principles stated in the Koran; Sharia, in turn, resolves discrepancies regarding the definition of the legal status of women. The continuing restrained position of women is considered a distinctive feature of many Islamic countries, so, for example, in the power structures of such states, it is very seldom possible to find women. In addition, in many
Islamic families the woman is still expected to operate at the core of family life, i.e. as the housewife who is engaged in educating the children, while the man provides for the family.
With regard to the problem of the rights of women in Muslim states. There are several points of view: one that the position of women in Islamic countries should be restrained and
52 oppressed; the other that a woman under Islamic law should have many more rights than one in the West.
The complexity of a solution to the problem of women's rights is predetermined by a number of sacred, social, legal and cultural issues. International law has exclusively secular characteristics in these countries, which have Islamic law forming the basis of sacred norms, therefore stifling change.
In particular, "The Universal Declaration of Human Rights" of 1948 proclaims equality for all people in terms of rights and freedoms regardless of race, skin color, position, religion etc. (Article 2); the right to life and security of the individual (Article 3); equality of all before the law (Article 7); the right to honor and dignity (Article 12); the right to shelter
(Article 12); the right to freedom of speech, conscience, religion etc. (Article 18) .
Meanwhile, many international legal acts are not sources of rights in Islam, and their execution is not a holy duty or subject to any sanctions if violated, unlike rights under
Islam. Besides this, another important point that should be mentioned is that for a long period of time, exact religious norms, not secular ones, have determined the social system of Islamic states, and based on this fact, Islamic norms still occupy the most important position in those states’ life. In turn, it should be noted that there are specifics of each
Muslim country when compared with the European concept of the rights of women, and such rights under Islam can't be identical as such a system is incompatible with Muslim morals.
It is also necessary to note that the legal status of women in Muslim countries didn't remain invariable. The influence of European states has promoted the separation of state and religion, leading to relative democratization of Muslim society within its borders. Today,
53 women in the Muslim world are active, and contrary to the prevailing opinion, study and work are allowed, so they are engaged in such activities as journalism, healthcare, and teaching. However, many families continue to live according to tradition, as did their ancestors, as the good breeding and the religiousness of future generations depends on women.
In support of the position that women in Islamic states have many more rights than those in the West, a number of arguments are adduced. Islam approves gender equality, highlighting the special roles of mothers, sisters, and wives, the violation of whose rights or whose oppression is strictly punishable in Islam. Women have special rights in the family, and are held in high esteem. Woman may conduct social and economic activities, and accumulate income. Furthermore, it is the responsibility of the man to provide her with means so that the woman wants for nothing. In addition, a woman can choose to either work or not, but there are fields of activity which are inadmissible to her, namely types of work connected with physical activities and with entertainment, such as casinos. Islam approves of polygamy, but at the same time, if the first wife so chooses after the husband takes a second wife, she can file for divorce.
However, it is also possible to adduce a number of arguments in favor of the point of view that women in Islamic countries have limited rights. For example, in Saudi Arabia, women couldn't drive a car until recently. Religion is reflected in all aspects of life, leading occasionally to unexpected effects. By way of illustration, an incident in Mecca took place in March 2002, when members of the religious police didn't allow schoolgirls of a particular girl's schools to leave a building which was on fire because they were not wearing traditional head scarfs and long dresses. Only after this case did the Ministry of
54 Education of Saudi Arabia allow rescue services to have direct access to the territory of girl's schools in case of emergency. In addition, in Arab countries there is a practice of maintaining the honor and dignity of a woman that often leads to restriction of their movement, a violation of Article 13 of the Universal Declaration of Human Rights.
The recent process of expansive globalization demands that Islamic countries modernize, while preserving some existing tendencies. In particular, the Universal Declaration of
Human Rights in Islam sets gender equality on condition of the performance of family duties by the woman, and her observance of the requirements of Islamic ethics to protect her honor and status. In some countries, for example according to the constitution of
Bahrain, gender equality adheres to the same principles provided that the standards of
Islamic Sharia aren't affected. The tendencies toward fighting for women's rights is increasing, as women increase their efforts. Therefore, for example, the Iranian journalist
Masikh Alinezhad established a company under the name "My Secret Freedom", working against laws which were laid by the theocratic leadership of Iran forcing women to wear a hijab. The slogan of this campaign was, "Each Iranian has the right to choose whether she needs a hijab or not". Some consider that the idea of hiding a woman's hair is based on a wrong interpretation of the Koran.
However, there have also been changes, and in political life, albeit to a limited extent for woman , currently in a number of countries women have acquired electoral rights, for example in Saudi Arabia. Furthermore, in 2004 for the first time in the history of Bahrain, the post of Minister of Health was been given to a woman. Also in 2004, the position of
Minister of Economy and Trade of the UAE was likewise entrusted the woman, and in
2007 women constituted 22,5% of the general structure of Federal National Council of the
55 country. Such changes have, of course, not influenced all Islamic countries, but, nevertheless, shifts towards modernization have happened.
Thus, discussions concerning the issues of women’s rights in Islamic countries is being conducted today. But to avoid infringing on the rights of women, the correct understanding of Islam is essential. Nevertheless, at the present stage under the conditions of the process of globalization, there are changes taking place because of which the rights of women have extend. However, these processes connected with the solution of gender issues have contradictory characteristics - concurrent to progressive tendencies, segregation takes place that slows the process of modernization as the European legal model is not absolutely suited to Islamic countries.
V. A Comparison of "Western" and "Muslim" Understandings of Human Rights 5.1 The Legal System Protecting Women’s Rights in Islamic Countries
In the modern world in Islamic countries, there is a fight between supporters of a utilitarian and European law, on the one hand, and general law of Sharia which remains preferable to a considerable part of the population, on the other. This leads to continually repeating collisions of cultures and legal systems, especially concerning women.
There is an opinion that the Islamic religion is capable of regulating the spiritual and cultural life of Muslim states, by exerting influence on the formation of the states' personality, but that it can't and shouldn't define the political life of these countries, relations in the public sphere, or act as the guarantor of rights, freedoms and interests of
Muslim women.
56 This is power to the right, i.e. secular laws. In other words, the legal status of Muslim women has to be improved using the law-making activity of the state, but not thanks to the efforts of Islam.
However, in some instances, such an approach can be dangerous. For example, in 1979 in
Pakistan, thanks to pressure exerted by international groups regarding human rights, the normative legal acts that consider rape to be a crime committed against a woman have been adopted. However, at the same time, the punishments described in the Koran for fornication and adultery have been kept.
There was a situation when for the female accuser who could not find four Muslim males who would testify to the rape, the fact that she makes the accusation, means the recognition of fornication by her party. Thereby, she is subject to punishment, ranging from 100 lashes, to stoning and it can consist of imprisonment for a period of up to 10 years, or at the least, the minor punishment of 30 public lashes and a penalty.
Similar stories also occurred in stabled and developed Muslim societies, including Egypt,
Jordan, Somalia, and Turkey and among the Muslim immigrant communities living in the
West. The Muslim immigrants living in the West often continue to use laws of Sharia to settle relations among themselves, ignoring the courts of the countries they reside in.
At the same time, in many Muslim countries (Afghanistan, Iran, Indonesia, Lebanon, Saudi
Arabia, Syria, Turkey, Tunisia, etc.) exist international legal acts devoted to human rights, including the rights of the Muslim female to work. In September 1981, the Islamic Council of Europe proclaimed the Universal Islamic Declaration of Human Rights. Also, The Cairo
Declaration on Human Rights in Islam, The Ethical Code of the Islamic Conference, The
Islamic Information Code on Ethics of 1991, and The Dakar Declaration of 1991 are essential in the Islamic world. In September 1990, at the XIX meeting of Ministers of
57 Foreign Affairs of member countries of the Organization of the Islamic Conference in
Cairo, The Cairo Declaration was adopted. The declaration has been recognized as the
Islamic reply of the United Nations' Universal Declaration of Human Rights (UDHR), which was adopted in 1948. In 1992, the text of the Cairo declaration was submitted to the
UN Commission on Human Rights, where it was strongly condemned by the International
Commission of Jurists. According to them and Article 25 - “Islamic Sharia is the only source for interpretation of any of articles of the present Declaration". This does not allow pronouncement of Article 24 of the Declaration ("All rights and freedoms enshrined in the present document are limited to standards of Islamic Sharia") regarding the change of the personal status of Muslim women towards freedom and equality.
For this reason, the role of the Islamic right in the process of forming the way of life, the principles, and the cultures of Muslim countries cannot be underestimated. (Cairo
Declaration on Human Rights in Islam, n.d.)
Therefore, even formally fixing the standard rights of woman in the international normative legal acts can do little to change general Sharia law that has genuinely taken root and which speaks about honor and the priority of traditions and relationship among
Muslims. As for women, it continues to mean maintaining virginity for the unmarried woman, modesty for the married woman, the corresponding Islamic attire, and the strict implementation of the requirements of a division of status.
The real legal system has sewn up the rights of women in the Islamic right and is the most obvious example of the deep conflict between the western doctrine about human rights and the Islamic right, which integrally doesn't accept it. This conflict is caused by features of the outlooks of both parties. Permitting these contradictions is one of the most relevant social, philosophical and legal problems of the present day.
58 5.2 The Response of the International Community In the two decades after the adoption of the historical global agreement on gender equality, the rights of women are under threat again. Once again. the UN has urged governments to stick to the progress made in the implementation of the rights of women under the leadership of world leaders, and to take urgent measures to observe these obligations.
Twenty years ago, world leaders gathered in Beijing and promised to protect and encourage the rights of women around the world. Today we observe a sharply aggressive reaction in many countries to the achievements made in the sphere of realizing the rights of women. In spite of the fact that after the adoption of the Beijing declaration considerable results have been achieved, full gender equality has still not been reached in every country of the world, and the rights of women and girls are under threat.
Women around the world continue to face discrimination, are deprived of equal access to participation in public and political life, and suffer from sexual and gender violence, and violations both in public and in private. Human rights activist's women often face threats, intimidations and attacks, and sometimes they even pay with their lives for their activities to achieve gender equality.
The commission of the UN has regularly urged governments for decades to fulfill globally the assumed obligations for the protection of women's rights. They have to confirm that the rights of women are human rights, and that they will begin to work immediately, to completely exercise the rights of women and girls.
The activity of the Organization in support of the rights of women began with the moment of the declaration of the Charter. Among the purposes of the UN stated in Article 1 of the
Charter is "to carry out the international cooperation... in encouraging and developing
59 respect for human rights and fundamental freedoms for all, without distinction of race, status, language or religion". (Charter of the United Nations, n.d.)
In the first year of its existence, the UN Economic and Social Council founded the
Commission on the Status of Women, which has become the global governing body dealing only with issues of gender equality and the advancement of women. Supervision of the observance of gender-neutral formulations in the draft of the Universal Declaration of
Human Rights was one of the first tasks successfully carried out by the Commission.
Gender equality is at the heart of human rights and the values of the UN. The fundamental principle of the UN Charter adopted by world leaders in 1945 is "the equality of men and women", and all states bear responsibility for protecting and promoting the rights of women.
Now all efforts of the UN are bent on achieving the purposes in the field of Sustainable
Development Goals (SDG), as recently accepted. In each 17 SDGs, the extremely important parts are assigned to women, and many tasks are directly related to the recognition of the equality of women and promote the expansion of their rights and opportunities, both in purpose and achievement. As such, purpose No. 5 directly consists of
"ensuring gender equality and expanding the rights and opportunities of all women and girls". (Goals in the field of sustainable development, n.d.)
To ensure compliance with the rights of women around the world, many states should make corresponding changes to national legislations. As of 2014, equality between men and women was constitutionally guaranteed by 143 countries. Although the result is on record,
52 states haven't yet taken this step.
60 In addition, the UN system still pays special attention to the question of violence against women. The Declaration on the Eradication of Violence against Women, adopted in 1993 by the General Assembly, contains a definition of violence against women and an accurate statement of the rights allowing for the eradication of violence against women in all its forms. The declaration has reflected the determination of the related states to implement the obligations and commitments of the international community in general, and to efforts to eradicate violence against women.
In February 2008, the UN Secretary General, Ban Ki-moon, announced the beginning of a holding the global campaign "Together We Will Finish Violence against Women". In the message at the event to begin this long-term global campaign, he called violence against women a problem requiring a solution that "can't be postponed". The international day for the fight to eliminate violence against women is celebrated on November 25.
5.3 The Role of IGOs and NGOs to Promote Women's Rights An essential element of the international mechanism to protect the rights of women is the institutional subsystem - the international organizations for the protection of the rights of women. These international organizations are an important subject of international relations and exert an increasing impact on the global political process in recent years, designed to protect the rights of women. These international organizations are a myriad of combination of intergovernmental and non-governmental character, created by international agreement
(i.e. the charter, the status or other constitutional documents) to assist in the solving related international problems.
The most significant role among MPOs in the system of protecting the rights and freedoms of the individual and of women and is played by the United Nations (UN), which was
61 created in 1945, in its original form, to maintain and consolidate international peace and the development of multilateral cooperation among states.
The charters of the UN has assigned the realization of duties to a wide range of bodies and organizations, including in relation to human rights issues and the rights of women, ; furthermore, the United Nations General Assembly has accepted a considerable number of general laws concerning the individual and women, and of conventions and declarations devoted to particular collective rights.
The United Nations General Assembly is the supreme body of the UN in which all member countries are present. According to Article 13 of the Charter of the UN, one of the functions of the General Assembly is to conduct research and then make recommendations for the purpose of "advancing international cooperation in social, economic, cultural, and educational areas, and in the field of healthcare, and also to assist in the realization of human rights and fundamental freedoms for all, regardless of race, status, language or religion". (Charter of the United Nations, n.d.)
Among other intergovernmental organizations that question the rights of women, it is necessary to mention the following:
The Commission on the Status of Women (CSW) was founded by the Economic and Social
Council (ECOSOC) in 1946 and consists of representatives of member countries of the UN.
The commission on the status of women is an interstate organ and one of 6 commissions of the ECOSOC. Therefore, it bears primary responsibility for operations connected to the solution of problems faced by women, and for related discussions in the United Nations' system.
62 The United Nations Economic and Social Council (ECOSOC) is one of the principal organs making decisions in the UN. It coordinates all economic and social activities of the UN and its specialized agencies. This establishment is especially important for women as it contains the following structures: a) The Commission on the Status of Women, b) The Committee on the Liquidation of all Forms of Discrimination in Relation to Women, c) The Commission on Human Rights.
All send reports and resolutions to the ECOSOC for review. The ECOSOC then makes decisions accordingly and advances the approved projects in the United Nations General
Assembly for final acceptance.
The Commission on Human Rights was formed by the ECOSOC in 1946 and is the principal organ working on the human rights' issue. The commission conducts different research, makes recommendations and documents of international character in the field of human rights and performs special tasks for the United Nations General Assembly or
ECOSOC, including investigating different violations of human rights, declaring those involved, and implementing communication with those areas where they are violated. The
Commission cooperates with all other UN institutions in the field of human rights, even providing help to the ECOSOC in issues relating to human rights within the UN system.
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) was created in 1982 and acts to implement strategies accepted in Nairobi and
Conventions of the UN on the elimination of all forms of discrimination against women. It
63 consists of 23 experts of high moral standing and competence in the Convention. The primary objective is to study reports of the states ratifying the Convention and using
ECOSOC annually to report to the General Assembly on their activities. The UN Secretary
General transfers CEDAW reports for analysis to the Commission regarding the status of women.
The UN International Research and Training Institute for the Advancement of Women
(INSTRAW) proceeds to work from the ideas put forward at the international conference in
Mexico in 1975 (The International Year of Women). But this institute was only established in 1982. INSTRAW is an autonomous institute which does not enter the UN system, but cooperates with various research centers in multiple directions regarding the problem of protecting the rights of women worldwide.
The UN Development Fund for Women (UNIFEM) is an independent development fund at the UN. UNIFEM has two primary objectives: a) to provide financial and technical support to women who take part in cooperative activities, in the production of food, in the field of water and fuel extraction, in health care, and in small businesses, management, and planning; b) to guarantee that women, as well as men, receive the same help in the aid programs for developing countries. UNIFEM has functioned since 1978.
The Bureau Concerning Employment and Equal Opportunities for Women makes a significant contribution to the development of draft directives, and the preparation of various reports, including information messages on the position of women in the European
Union, and about measures protecting their rights. This functional body of the EU
64 Commission maintains close contact with groups of workers and businessmen, and holds research seminars, meetings, etc. Within the EU Commission also works the Women's
Bureau of Information and the Advisory Committee concerning equal opportunities for men and women (established in 1982). It consists of members of bodies to consider questions of equality of EU member states. The tasks of the Committee include developing offers on equal opportunities for men and women, and conducting analytical and advisory activities. Besides these bodies for the protection of women's rights, specially created by the EU Commission in the EU. The desire to promote the improvement of working conditions and the standard of living of citizens of EU member states became the purpose of this education. The fund has allocated considerable sums especially to the needs of women. In 1986, for example, the fund awarded about 80% of the funds to the needs of women. A certain gender reorientation is now characteristic of the International Labour
Organization. It has also decided on the inclusion of problems relating to ensuring equal rights and equal opportunities for women and men in the employment sphere, in all programs and other events held by this organization.
For non-governmental organizations, the problems faced by women are complex and multidimensional, covering both the sphere of social protection and the sphere of social development. It is necessary for them to decide upon continuous monitoring of the position of women, developing strategic objectives and improvement programs, coordinating the programs run by different departments and organizations, and assessing progress in this area.
65 The fixed assets of impact of international non-governmental organizations on world politics are the mobilization of public opinion, the rendering of pressure upon interstate organizations (first of all the UN) and directly on concrete states for the purpose of the solving these or other problems, and the observation of government activities in various spheres of public life and the implementation of the obligations undertaken by them.
The actions of human rights NGO in conditions of totalitarian structures have four main directions. The first is the training of expert groups in qualified analysis of the legislation on compliance with international standards in the field of human rights and the rights of women, drawing upon its fundamental power for recommendations on natural, nonviolent transformation of totalitarian structures into democratic societies. The second is to attract the attention of the general population to make it aware of violations of the rights of women and the imperfections in related legislation, and to draw the attention of international organizations to the facts of such violations of women's rights. The third is the preparation of educational programs, and the addition of human rights literature to acquaint the population with the international standards in the field of human rights and women's rights, by holding seminars and conferences of an informative and educational nature. The fourth is to provide material and moral support and render legal aid to persons whose rights are violated.
We will now list some international non-governmental organizations protecting the rights of women:
Federation Democratique Internationale des Femmes – a non-governmental organization which unites women's and feminist organizations worldwide.
66
The International Federation of University Women - totals more than 180,000 members from 67 national federations and associations, with the purpose to improve the position of women and girls, by contributing to the development of education.
"Karat Coalition" - a regional network of women's non-governmental organizations of 11 countries of Central and Eastern Europe – created in 1997 in Warsaw, with the primary goals to develop and provide actual gender equality by the implementation of the Platform of Action program.
"Sisterhoods – the World Institute" (Sisterhood is global Institute) – an international women's network to protect the human rights of women, is directed to expand the opportunities of women via legal education.
The female international center (Women's International Center) – a non-profit educational organization with the purpose to achieve respect and support the rights of women, and the glorification of the positive contribution of women to human history.
Women in the Middle East – an association created to support qualified researchers of the problems of women in the Middle East.
It is possible to list other organizations, but all of them are united by the joint desire to solve such problems as political and legal rights and their combined potential: linking various social and family roles; gaining positions for women in the labor market; ensuring access for girls and women to education and different forms of knowledge, including professional; and ensuring purposeful actions in the fields of culture, health care, etc.
67 Thus, it is possible to draw an unambiguous conclusion that the fight of MPOs and NGOs for human rights and women's rights is an integral part of the aspiration to legality, social and economic transformations, observance of fundamental documents in the sphere of protecting the rights of women, and the creation and realization of new ones.
VI. A Comparative Study of Increasing Freedom and Liberty for Women in Different Islamic Countries 6.1 Saudi Arabia
The rights of women in Saudi Arabia — the system of rules and restrictions imposed on women living in Saudi Arabia, based on the patriarchal laws of Sharia.
Active and passive selective rights of women in Saudi Arabia was achieved only at the end of 2015. Until September of the present year, Saudi Arabia was the only country in the world where women were forbidden from driving a car. The king of Saudi Arabia, Salman, declared on September 26th, 2017, that from June 2018, local women will be able to obtain a driver's license and lawfully take the wheel. The decision of King Salman, however, doesn't mean full liberalization — to use a car, a woman will need to ask for the permission of a man. Also, as of 2009, the country is positioned 130th from 134 countries on infringements of women's rights. It is also the only country which received zero points for political and public rights granted to women. However, since 2008, against a background of an improving economy, the Kingdom has outlined gradual tendencies toward the mitigation of gender discrimination.
A woman may not independently move without a husband or male relative, use public buses, or communicate with a man who is not the husband or male relative. Women are
68 obliged to wear a black abaya, and in some regions, to leave only her eyes uncovered.
Although the share of women with higher education is much higher than that of men, for women the quality of education is worse, the availability of sport's facilities is limited, and the number of higher education institutions for women is lower; therefore, many women go abroad to study, though grants from the government are provided to one third as many as to men. A woman has no right to study, work, or go abroad if she isn't permitted to by her husband or male relative. Under law, a woman comes into half the fortune of a man, and upon reaching the age of seven, the rights to it unconditionally belong to the father or grandfather. A girl is allowed to be married at any age, so such children often give up their studies. Any submission of the claim in court by the woman needs to have 6 male witnesses, and testimonies by the woman are considered to have half the value. If a woman has been raped, then she can be punished for the fact that she "provoked" the man to commit the crime (i.e. early contact with a man or violations of the dress-code). The child of a Saudi woman and a foreigner has no rights to Saudi citizenship.
17% of the working population of Saudi Arabia are women.
The leading Saudi feminist and Vaykh al-Huvayder's journalist has stated: "Saudi women are weak irrespective of their status, even the most spoiled among them, as there is no law protecting them from someone's attacks. Suppression of women and the deleting of their identity is the spot characteristic of the majority of the houses of Saudi Arabia". (Saudi women will be able to drive: glee and questions after the abolition of the ban. , n.d.)
In the criminal code of Saudi Arabia, no law exists ordering punishment for rape, so such affairs should be dealt with by the sharia court, adhering to Muslim law, but often tyrants can remain unpunished. In most cases, on the contrary, the victim of the tyrant is subject to
69 punishment, especially if the dress code has been broken or there has been early contact with a future tyrant. Also, matrimonial rape isn't considered a crime.
Women quite often become subject to prosecution by religious police, sometimes becoming the victims of arbitrary arrests and physical punishments. A report by the UN gives an example of which charges of sexual abuse of woman were brought to two mutavina
(religious police officers); however, the charges were rejected on the basis that mutavina aren't subject to prosecution.
In 2009, a 23-year-old unmarried woman was sentenced to one year of imprisonment and
100 lashes for "adultery" after she fell victim to rape and unsuccessfully tried to have an abortion. The flogging was postponed until after the child's delivery.
In October 2015, the Supreme mufti of Saudi Arabia, Abdul-Aziz Ali Sheikh, said that in cases of extreme hunger, husbands have the right to cannibalize their wives:
"If a man is at the point of starving and cannot find food in the house, he can cut off a fragment of the body of his wife and eat it. The woman has to treat this decision with devotion and humility as she is a single whole with the husband". (Namazie, 2001)
The statement by the mufti has caused a squall of public criticism, and Abdul-Aziz Ali has said that his words were misunderstood. A woman may be arrested for wearing "the wrong clothes". Gender mixture (i.e. communication with a man who is not the husband or male relative) can be equated as a crime, which is especially severe for the woman, and even a brief contact can result in her with imprisonment - quite often, the family kills the girl for such an "offense". The following are Vadzhekh Al-Huvayder's comments on this topic:
70 "When a woman is arrested for communicating with a male non-mahram, her life is actually over. She runs to a female shelter, or goes to prison, and the family forever rejects her... and the woman can only leave prison with the permission of a trustee from her family".
If a woman has fallen victim to rape, then she can be punished in the form of a prison term for the fact that she broke a dress-code (i.e. her body was not covered enough) or was familiar with a future tyrant. Traditionally, a male prisoner in Saudi Arabia can be released ahead of schedule if he learns the Koran by heart, or receives a pardon from the king on the occasion of a holiday or a crowning. Female prisoners, however, are deprived of such privileges, and after a term can be released only with the permission of a male trustee.
Quite often the trustee refuses the woman this release, and she is forced to remain imprisoned for many years. In such situations, the government can pardon the woman, but sometimes the male trustee insists on an increase in the term of punishment. In prison, the woman is attached to the prison inspector who carries out the role of the trustee and grants permission to the woman for movement.
In 2015, a woman accused her husband of adultery with a servant and secretly filmed the couple kissing, and subsequently published it on the Internet. The woman was immediately threatened with imprisonment and a fine of 87,6 thousand euros for "insulting the honor and dignity of her husband".
Violence against women and children at home wasn't traditionally considered a criminal case in the country, although this situation changed in 2013.
71 One egregious example took place in the family of an imam (the Islamic priest) who cruelly beat and raped his 5-year-old daughter - the girl died. The father stayed in prison for only 2 months and had to pay a penalty of 50 thousand dollars. Such a "lenient punishment" caused broad indignation from women's organizations and the public, and as a result the punishment for the imam was toughened to 800 lashes and a term of 8 years in prison.
In 2008, in order to render social protection, the Saudi prime minister constructed shelters for women in several large cities. The same year, the prime minister charged the government to develop a national strategy to fight against domestic violence. Some organizations in the kingdom began to make attempts to strengthen the fight against violence in families. Deciding to seriously deal with this problem in 2013, the kingdom started a large-scale organization to fight such family violence, with propaganda posters stating: "No more abuses!". In August 2013, the cabinet approved a new law according to which violence in the family is equated to a criminal offense, with punishments of up to one year of imprisonment and a penalty of 50 000 Saudi riyals - the maximum punishment can be doubled for recidivists. The law affirms criminal liability for psychological and sexual violence, and physical abuse. In addition, the law extends to those who abuse employment powers concerning subordinates.
6.2 Afghanistan In Afghanistan about 120 years ago, interest in the situation of women's rights, or in modern terminology to gender issues, arose for the first time. The Emir Abdur Rahman
Khan, ruling from 1880 to 1901, made the first attempt to declare restrictions on domestic violence and early marriages, and to legislatively affirm laws of succession of women and
72 their right to initiate a divorce, albeit naturally within a rigid framework of requirements under Sharia.
As a consequence, at the beginning of the 20th century, his grandson Emir Amanulla Khan continued a similar policy, allowing women to remove their burqas and organize the first schools for girls, and support the idea of creating women's organizations in the country and by granting woman the right to independently choose their spouses.
In the second half of the 20th century, the situation of women's rights considerably improved. An important achievement of the 1950-60s can be considered the fixing in the constitution of equal rights of men and women, the rights of women to vote and be elected to parliament, and to become members of the government. Afghans were authorized to receive higher education at local institutes and universities, and to work in state institutions.
Though progressing slowly and carefully, with a careful eye kept on centuries-old traditions, nevertheless the situation with gender equality gradually improved. During the
1980s, the so-called communist occupation and presence in Afghanistan of the Soviet troops was an important time in the development of a journey towards improving the situation for woman. Programs were implemented to fight illiteracy among women, with the creation of special educational and professional courses for them. In addition, women were given the opportunity to receive higher and secondary vocational education abroad with subsequent employment in government institutions and earn compensation equal to that of men, thus an increased level of consciousness in Afghan women was promoted by their involvement into public life, and their ability to assert their rights both within the family, and outside of it.
73 However, with the start of the civil war, the first victims of which are always the least protected segments of the population, i.e. women and children, this process of socio- political modernization of Afghanistan was suspended, and then was completely reversed.
Hundreds of thousands of Afghans have been forced to leave their homeland, have died or have been wounded in times of fighting, and many have become widows. Poverty, social and legal vulnerability, and the psychological shock endured have nullified all efforts of recent decades.
With the coming to power of the Talibs, and the establishment of their medieval style based on blindly following a literal understanding of Sharia, came the last crushing blow to gender equality. Women were forbidden to leave the house without a close male relative, and wearing a burqa became strictly obligatory. All schools for girls were closed, the hiring of women for work was punished by severe punishment, not only for the woman, but also for her employer, and the legal departure of women abroad became impossible.
Receiving timely qualified medical care turned into a huge problem, as, according to
Talibs, only a female doctor can treat women, and women cannot work. This vicious cycle, has increased to terrifying scales the already high female mortality rate, starting at childbirth. As a result of the Talibs government, Afghans have lost all their rights, both in the social and political spheres.
After the fall of the Talib regime at the end of 2001 and the arrival to Afghanistan of troops from the international coalition, i.e. the beginning of the period of democratization of
Afghan society on the western model, hopes for positive developments in the position of women have increased.
74 The international community, in view of the catastrophic situation with women's rights in
Afghanistan, stimulated legislative developments to fix gender equality and the involvement of Afghans in the social and political life of their country. Consequently, in
2003, the constitution of Afghanistan adopted article 22, confirming the equal rights and responsibilities before the law of all citizens irrespective of gender. The rights of women have been restored and defined regarding education, employment, meaningful participation in decision-making in the future structure of Afghan society. The new legislation reserves
25% of places in parliament and 17% of places in the senate for women. Furthermore, each province has female representatives in the National Assembly, and 50% of 13 senators appointed by the president, are intended for women. In addition, women hold a number of key posts in various ministries, including one female governor (Province of Bamiyan), two
Ambassadors Extraordinary and Plenipotentiary to the World, and a female minister traditionally heads the Ministry of Affairs for Women.
The Ministry of Affairs for Women resumed activities in 2001 after the fall of the Talibs regime, having reoriented its strategy from holding charity events to implementing the government's political and social programs for women for the purpose of protecting and expanding their rights.
An independent Commission on Human Rights to the President of Afghanistan was created, a special department whose main task is to assist the embodiment into life of the legislatively affirmed rights of women, to track the situation of women's rights, to encourage the active involvement of Afghans in the process of the restoration of the country, and to counteract gender inequality in Afghan society, including the facts of domestic violence, violent and early marriages, and the growth of female crime.
75 Joint efforts by the Ministry of Affairs of Women and the Commission on Human Rights have resulted in the drafting of new acts to prevent violence against women; to ban early and violent marriages; to ensure a system to help women forced to collect alms; to offer amnesty to and improve the conditions of women in places of detention; to create a network of shelters for women - for the victims of domestic violence and homeless women; and to establish rules and conditions on the provision of pensions to women. Furthermore, the Ministry and the Commission carry out continuous monitoring of women's hospitals, detention centers and shelters, and publish and distribute printed material on various subjects connected with the position of women, a monthly female magazine and newspaper that organizes courses of vocational training for women, and exhibitions to sell the results of their work. They also promote employment of women; give support to widows; provide legal aid in court to female victims of violence and to persons interested in getting a divorce; give mini-credits to support small businesses; and plan to open a women's bank and a women's labor exchange.
Despite this obvious progress, first of all the fixing of gender equality into legislature, with the purpose of providing equal opportunities to women and men in all areas of political, social and economic life, the real embodiment of these good intentions leaves much to be desired.
Just 2% of Afghans have a national identity card (tasker), and, respectively, 98% have no document confirming their nationality and legal status, with 4 out of 5 women able neither to read, nor to write, i.e. 85% of Afghans are illiterate - while the equivalent indicator for men is 51%.
76 Huge efforts are made by the Afghan state and the international community to involve children in educational programs; however, only 20% of girls attend elementary school, and 5% study at high school. The reasons for this familiar situation are, first of all lie in the low level of safety (720 schools in general are closed in the southern provinces of
Gelmand, Kandahar, Uruzgan and Zabol because of the impossibility to ensure the safety of pupils); in a shortage of female teachers (only a third of the total number of teachers of elementary and high school are female); requisitions at schools (even though education is free, additional charges exist for a myriad of additional services in 85% of schools); in a lack of material and technical resources (more than 5000 schools have no buildings); and in the high risk of a kidnapping on the way to school.
According to the International Organization for Migration, Afghanistan remains one of the main centers of human trafficking, primarily of women and children. Concern in connection with what are becoming become frequent cases of trade in girls in the provinces of Herat, Kunduz and Takhar has been expressed in a statement by the independent
Commission on Human Rights in Afghanistan. In January 2008, 3 cases of the sale of 4-9 month old girls have been confirmed officially. Parents explain that this practice occurs due to extreme poverty and a desire to save girls from hunger and cold. Afghanistan is one of the 5 most backward countries in the world, with more than half of the population below the poverty line, having a daily income of less than 1 US dollar. While more than 50% of the population of the country are younger than 18 years old, legislation forbidding trade in children and their abuse in general is absent.
According to UNICEF, in 57% of weddings the bride is younger than 16 years old, and
80% of marriages are either forced or violent and are arranged to liquidate debt obligations
77 or as means to settle disputes or to terminate blood feuds. The country people consider the normal age of consent for girls to be 8-10 years old; amendments to the legislation raising the age of consent to 17 years old have been adopted. However, the changes to the law liquidated neither general poverty nor the traditional bans on communication between boys and girls, not to mention the problems with security and kidnappings, i.e. the basic reasons for early and violent marriages. As a result, the families of girls in such marriages prefer not to register them officially.
Early marriage leads to a growth in the rates of child and maternal mortality during childbirth. Of 100,000 childbirths in Afghanistan, there are around 1,600 cases of maternal mortality and the risk of death during labor for girls of 14 years or younger increases five- fold in comparison with fully-grown women. On average, once an Afghan female reaches puberty, she becomes pregnant 13 times and gives birth to seven viable babies; furthermore, not every seventh newborn survives beyond about one year, and every fifth beyond five years.
According to the United Nations Children's Fund, 97% of the interviewed Afghans have never used contraceptives and don't even know they exist; 21% of women of childbearing age have weight deficiency, 48% suffer from anemia, and 75% from a lack of iodine.
Despite the increased availability of medical care to women, first of all as obstetric aid
(three times for the first 3 years), only one in five Afghans gives birth in the conditions of a medical institution. In other cases, the reason medical care is not received, and the resulting female moralities, is the position of the husband with regard to cultural and religious traditions and his temporary absence — the female needs the consent of male relatives for any exit from the house, including for a visit to a doctor. This situation is worsened by the
78 total illiteracy of such women, a lack of hospitals and female doctors, a lack of transport infrastructure, and the low level of security.
Afghanistan is one of the few countries where the life expectancy of women is below that of men, and at 44 years old, it is one of the lowest in the world.
As a result of the 30 year civil war, hundreds of thousands of men have been killed, and, respectively, a huge number of women have become widows. In patriarchal Afghan society, the death of the husband not only deprives the woman of economic resources, but also undermines her social status, so widows are more often victims of violence and social isolation, living under constant psychological stress.
According to non-governmental organizations, of the 26.6 million population of
Afghanistan, 1.5 million are widows. The average age of widows is 35 years old, 90% of whom have children, with most having more than four. 94% of widows are illiterate, being unable able to either read or write. About 50-70 thousand widows live in Kabul, where it is easier to find shelter and a livelihood than it is in the more conservative rural areas. The average income of a widow is 16 US dollars a month, earned by such activities as rug weaving or tailoring, but more generally by prostitution and collecting alms.
As noted by Amnesty International, the life of Afghan women, who have been granted broad social rights by the constitution, have in general changed only on paper. In thousands of Afghan families, woman are exposed to violence and do not receive any real protection from the state. Even after risking an appeal to the courts, they lose the processes as in family conflicts Afghan courts, as a rule, do not decide in favor of the victims of violence, but rather to the contrary, as guided by the instructions of Sharia.
79 In a report by Amnesty International on Afghanistan in 2007, it is claimed that "the legal reform designed to protect the rights of Afghan women hasn't been realized, and women in this country continue to exist as prisoners". (Women in Afganistan: The violations continue
, 2007) Women driven to despair often even try to commit suicide. In 2006, the
Independent Commission on Human Rights registered 110 cases of self-immolation in five provinces, then in 2007 in Herat alone, more than 90 women tried to end their lives by self- immolation, 70 of whom died, with the survivors crippled for the rest of their lives.
The draft law to prevent domestic violence demands not only its timely acceptance, but also its strict observance, especially with regard to punishment. The involvement of women in the police service and the judicial authorities, the training of female lawyers and the creation of family consultations, can also promote, if not a reduction in gender violence, then an adequate response to it as a crime against a person.
Educational programs on gender issues, both for men and women; a ban on early and violent marriages; restrictions on polygamy, on an equal basis with an increase in the education level of women; the development of available systems of female health care; and active involvement by women in all spheres of the political, economic and social life of
Afghanistan, must combine to promote a transformation of centuries old stereotypes of this patriarchal ceremonial society, leading eventually to a more complete compliance with the declared rights of women, and a change in gender relations in Afghan society.
"The history of Afghanistan has repeatedly proved — as stated in the report by the UN
Secretary General — that the threat of the return reaction is immanently inherent in efforts to strengthen the status of women. The achievement of ensuring full gender equality will
80 require serious commitment and political will from national and international interested parties".
The national strategy on development for Afghanistan up to 2020 seeks to reduce by 20% the level of poverty among women and to attract no less than 20% of women to work in government and public institutions. In addition, more than 200 non-governmental organizations, both local and international, carry out various programs directed toward advancing women in Afghanistan. We hope, their efforts will be crowned with success.
6.3 Morocco By following Muslim customs, which are still strong in Morocco, women have to submit to men. When Morocco was a dependent state, women had no reasonable, legal situation, but after the country gained independence, there were changes; in this country, a document called the Mudawang has been published. Even though this document has both designated and strengthened the status of women, it has not granted them any special rights. According to this document, in which the ideal family is one in which a man dominates, woman still have the right to marry only with the permission of their father,
Before Morocco's declaration of independence, all women were tied to their families or to harems - to go outside they had to get permission from their male guardian. The married woman had a higher status, which increased with age. Housework, such as doing embroidery and making jewelry was the primary activity of women. Women had the opportunity to attend schools on reading the Koran and usually visited public, female baths known as “hammams”. The existence of harems was practically nullified after independence from France in 1956.
81 Soon afterward, Moroccan women began to promote their interests actively, organizing meetings and demanding changes to their social status. Such activities have led to serious changes in society: authorizing women to receive an education, besides Islamic studies, in the fields of science; to teach; and to be engaged in public work. In 2004, women acquired the right to divorce, guardianship over children, and inherit property. In addition, women make up 17% of parliament.
With the coming to power of the current King of Morocco, Mohammed VI, the Mudawang was changed. The minimum age at which girls can marry was changed from 15 to 18, and the permission of the father is no longer a necessary condition. Also, women can now file for divorce. Furthermore, if a Moroccan woman has a child with a man who is not a citizen of the kingdom, the child has the right to Moroccan nationality - earlier this was not permitted. However, along with these improvements to the legislature concerning the rights of women, are statistics that show the real situation. According to the Thomson Reuters media company in 2013, 90% of Moroccan girls marry when younger than 18 years old.
The law of the country prescribes punishment for concealing a woman who has run away from her husband. 66% of women aged from 15 to 49 years old are illiterate. In just 3 months in 2008, there were 17,000 cases of rape by husbands, from which 78.8% were registered. Finally, the use of contraception during sexual contact with the wife can only be with the permission of the husband.
82 6.4 Jordan
According to the Thomson Reuters media company in 2013, Jordan was in 4th place for women's rights - 22nd among Arab countries. On the international level, the country ranks
99th among 148 countries on sexual equality. Women acquired for the first time the right to vote in 1974. The constitution of the country guarantees equality to all citizens of Jordan regardless of status, nationality or religion. 12%, or 18, of the deputies of the House of
Representatives are women. However, only since 2003 have women acquired the right to receive passports without the permission of their husband. Also, a child whose father is a foreigner is not permitted to obtain Jordanian citizenship.
As of 2012 in the country, 681 cases of rape have been officially registered. Some good news however is that only 14.1% of women are illiterate - the best figure in the Middle
East. Although the law gives full freedom to woman to choose a profession and the right to decree pregnancy and childbirth, many female workers face cultural obstacles and discrimination from men's groups as male society encourages the female housewife, but not the working woman. Women can apply for fewer jobs as many spheres in the economy are closed to them, as a rule, and they receive a smaller salary than do their male colleagues.
Under law, a woman can't work if forbidden by her male guardian. Most women work in low-wage jobs, as they have no opportunity for promotion because of sexual segregation. A woman, according to the Islamic codes, has the right to divorce. However, Islamic courts often put the woman in a vulnerable position, making her a de facto prisoner of her husband. To fight this, the government has entered a number of changes into the judicial system, in particular, a new law that forces the man to pay the former spouse alimony for three years. In addition, new funds giving support to divorced women have been created. It
83 is remarkable that if a woman gives birth only to girls, it can become sufficient grounds for divorce at the initiative of the husband.
Women come, as a rule, into less fortune than do male relatives. Quite often, pressure is put upon women to force them to refuse the land and property in favor of a family member. As a result, only 4% of land and property in the country belong to women - according to some information this figure is 17%.
One important problem in the country remains "honor murders", i.e. when a male guardian kills a “guilty” woman, because sharia courts treat such men, as a rule, indulgently.
Therefore, many women are afraid to leave the house. A woman can be dishonored if she had sexual contact before marriage, fooled around, flirted, or even fell victim to rape. Every year in the country, thousands of women perish at the hands of their husbands or relatives.
At the same time, the criminal code of Jordan treats such murderers indulgently, as formally it is considered "a personal matter for the man", but is in practice connected to cultural features which by incentive concern the men who have killed to restore their honor.
In April 2017, a considerable breakthrough in the criminal law of Jordan took place. The authorities of Jordan decided to remove a norm which allowed men guilty of rape to avoid punishment under the criminal code if they married the victims.
The government of the country approved the relevant amendments on Sunday, April 23;
2017.The government repealed the contradictory article 308, after many years of struggle by public activists, including representatives of the Muslim and Christian communities.
According to this law, the accused could avoid prison if he married the victim of the rape
84 for at least 3 years. Supporters of this law said that it thus protects the honor and reputation of the victims of rape.
In 2016, the operation of the law was limited — the accused could marry the victim only if she was aged from 15 to 18 years old, and he considered that the sexual intercourse had happened "with her consent".
In February 2017, a royal committee proposed repealing the law completely. Public activists supported this offer.
VII. Conclusion Gender equality is of great importance and impact, ensuring that all people, regardless of gender, can exercise their rights. Nevertheless, across the globe, new acts that discriminate against women not only continue to exist, but continue to be created. In most legal systems throughout the world, a huge number of laws and acts establish the less exclusive status of women and girls, with regard to questions concerning nationality and citizenship, health, education, marital status, labor rights, parental rights, and inheritance and property rights.
These forms of discrimination against women are incompatible with the strategy to expand the rights and opportunities of women.
Based on comparative research in the countries chosen for the thesis, it is possible to conclude that in some countries, woman, unlike men, cannot put on clothes as they wish, drive a car, work at night, inherit property, or give evidence in court. The majority of the laws that exist in Islamic countries are clearly of a discriminatory nature and belong to family life, in particular, to the rights of women to marry (or to the right not to marry, in cases of early-marriage coercion), to divorce, and to marry repeatedly, even legalizing such
85 discriminatory family practices as a wife-obedience and polygamy. The laws establishing
"wife-obedience" still govern matrimonial relations in many states, and confirms the relevance of the research subject chosen by me in this thesis.
During the process of creating this project, from the very beginning, from the moment of choosing a subject and scheduling this thesis, I have introduced a number of articles that raised questions regarding the violation of women's rights in a number of Islamic countries and which have induced me to choose this subject for my research.
In the introduction of the thesis, I believed that "A good example of respectful behavior concerning women, and the aspiration of a statement of their rights exist in such countries as Morocco and Jordan. Both of these countries within several decades tried to organize and maintain the welfare of the female part of the country, trying to give equal opportunities for education, and then for work. However, not all Islamic countries are developing equally; for example, the question of women's rights is crucial in Saudi Arabia and Afghanistan."
During the process of working on this degree project, passing from one point to another, studying deeply the perspective of the chosen subject and becoming acquainted with the scientific works of various sociologists, lawyers, and journalists, authors of books, manuals, articles and monographs, I have come to the conclusion that, firstly, authors of all information sources studied by me agree with the position about the universal violation of the rights of Islamic women, or absolutely agree and glorify the existing modes in Islamic countries and assure that the position of Islamic women in modern society can only be envied; secondly, to a varying degree, the violation of the rights of women takes place in each of the countries chosen by me for this study. It is possible to be convinced of this,
86 having studied chapter 6 of my thesis. Therefore, my statement regarding good examples, i.e. Morocco and Jordan, is a little exaggerated. Without doubt, the women of Morocco and
Jordan have many more the rights than do the woman of other Islamic countries, but, unfortunately, it is impossible to note that all atrocities concerning women have completely diminished.
The purpose of my research was to understand the rights of women among similar cultures and one religion in Islamic countries, using the examples of Morocco, Jordan, Saudi Arabia and Afghanistan.
To achieve the objectives this research, I studied the question of Sharia law and the Koran, and specifically their superiority over the precepts of the laws of the countries chosen for this research.
In item 3.3 of this thesis, I have analyzed sources of Sharia and have come to the conclusion that, according to these sources, a much lower situation in society than for men is initially allocated for women, and that the rights of women are discriminated by all sources of Islamic law.
In the course of studying references on this matter, I have encountered the book Mustapha
Mahomed At-Takhkhan "The woman on the way of the Appeal". In this book, there are such lines as:
"The problem consists of the fact that we are far from true understanding based on primary sources of Islam — the Holy Quran and blank Sunnah by the prophet. Some books contain many of the judgments which sometimes go beyond the reliable, clinging to shaky and
87 unreasonable justification of those points of view which suit their authors in the context of a certain era or society.
If there is in Muslim society a wrong attitude of the man towards the woman, then it is a problem not of Islam, or the wrong understanding of Islam. It is necessary to remember this, those who make the opinion of this, and, of course, that who profess it". (IBRAGIM,
1997)
These lines have helped me to formulate an opinion of rather a different position of women in each of the chosen countries for research. I believe that Sharia sources really give in to various interpretations; and in each of the explored Islamic countries, sources of Sharia are understood in a way favorable to a specific era, in a specific society, to a specific government.
My statement at the beginning of this work was: As soon as you are born as the person, you, by definition. acquire all human rights irrespective of whether you belong to a particular minority group, and nobody has the right to limit your rights, nor does your culture, religion, or government.
Unfortunately, this has not found support in the Sharia sources studied by me. However, I have not changed my statement of opinion put forward at the beginning of this work. I consider that, of course, each culture by its very nature is unique; each nation and society has its own history and culture, inherent only to those who share the associated point of view on human rights. Nevertheless, there are international standards of human rights which cannot be dependent on the cultural values accepted by only a minority of societies.
88 Appendices
Table 1 References to women in the Quran and hadith ...... 39
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