This section provides a detailed background on the unique setting in which this report was researched and written as well as on the contribution that the Palestinian womens movement has made to the development of civil society and the Palestinian Authority (PA).
The Occupied Palestinian Territories (OPT) do not constitute a sovereign state, nor does the PA represent a fully sovereign government, yet the PA has managed to develop a criminal justice system over the past decade. The development, makeup, and shortcomings of this system are examined in this section. While all Palestinians suffer from the deficiencies of the existing criminal justice system in the OPT, women pay a particularly heavy price for a system that is often unable or unwilling to respond adequately to gender-based violence. While a responsive criminal justice system is not the only element necessary for an effective response to violence against women, it is one essential factor in a wider effort to stop abuse and hold offenders accountable. Later sections of this report will also examine the role of the informal justice system in addressing cases of violence against women.
The Political and Legal Status of the Occupied Palestinian Territories
The 1949 Arab-Israeli War and the 1949 Armistice Agreements between Israel and the neighboring Arab countries of Syria, Lebanon, Egypt, and Jordan divided the territory of former Mandate Palestine into the areas of Israel, the West Bank, and the Gaza Strip. From 1948-1967, Jordan ruled over the West Bank and East Jerusalem, formally annexing these areas in 1950, while Egypt placed the Gaza Strip under military administration. Both Egypt and Jordan extended their respective laws to the areas they occupied.
As a result of the 1967 War, Israel captured and occupied the West Bank, East Jerusalem, and the Gaza Strip (hereinafter referred to as the Occupied Palestinian Territories or OPT). In 1980 Israel annexed East Jerusalem, declared it the eternal, undivided capital of Israel under a Basic Law entitled Jerusalem, and extended Israeli laws to Palestinian residents of East Jerusalem. The international community has not recognized East Jerusalem as part of Israel. After 1967 Israel established a military administration to govern Palestinian residents of the West Bank and Gaza Strip. The cornerstone of the Israeli military administration was a system of over 2,500 Israeli military orders that governed and severely restricted all aspects of civilian life, including freedom of expression, freedom of the press, and freedom of association.1 This system added yet another layer of legislation to the already complex conglomeration of Ottoman, British, Egyptian, and Jordanian laws in place.2
In December 1987, the Palestinian population in the OPT mounted a mass popular uprising against the Israeli occupation, known as the first intifada.3 In 1993, after failed peace talks in Madrid and Washington, Israel and the Palestine Liberation Organization (PLO)4 began secret negotiations in Oslo that resulted in the signing of the Declaration of Principles (DOP) on the White House lawn in September 1993. The DOP and subsequent Israeli-Palestinian agreements, collectively known as the Oslo Accords,5 were based on the principal of mutual recognition of Israel and the PLO. The Oslo Accords established a five year interim period during which Israel would withdraw from parts of the West Bank and Gaza Strip and the Palestinians would gain self-rule over these areas, including policing the local population. The interim period was supposed to lead to final status negotiations in 1999 on issues such as Palestinian refugees, Israeli settlements in the OPT, the status of Jerusalem, drawing of final borders, and sharing of water resources.
Since failed negotiations on final status issues in Camp David6 and the outbreak of the second intifada,7 both in 2000, the Oslo process has become moribund. Israel subsequently has engaged in several unilateral measures such as the withdrawal of Israeli troops and settlers from the Gaza Strip in 2005 and the building of a concrete and metal barrier hereinafter the wall primarily in West Bank territory, which is expected to lead to the de facto annexation of approximately 10 percent of the West Bank, including major Israeli settlements.8
As a result of the Oslo Accords, the PLO formed a Palestinian Authority, made up of a President, cabinet of ministers, and legislative body. In January 1996, it organized elections for the 88-seat legislature (the Palestinian Legislative Council or PLC) and for the presidency of the PA Yasser Arafat, head of the Fatah party and the PLO, won the presidential elections and his party swept the majority of the PLC seats, presaging 10 years of single party rule. Women represented 3.7 percent of the candidates and won five seats (5.6 percent) in the first PLC.9 Most Palestinian political factions refused to run in the 1996 elections in protest of the Oslo Accords, which they rejected on various grounds, including the fact that the Accords did not end the Israeli occupation, or stop the building of illegal Israeli settlements in the OPT. Hamas, or the Islamic Resistance Movement, the militant group founded as a branch of the Muslim Brotherhood in Gaza in 1987, and responsible for many of the targeted attacks against Israeli civilians since 1993, was one of the organizations that boycotted the elections. Hamas subsequently challenged Fatahs political monopoly by mobilizing grassroots support through educational, cultural, and social activities.10
The Oslo Accords divided the OPT into three areas (see map on p. 1). It gave the PA security and civilian control in A areas (comprising the largest Palestinian urban centers but only 17 percent of West Bank land) and civilian control in B areas (smaller Palestinian population centers outside the urban areas). Israel retained security control in B areas and full civilian and security control in C areas, the remainder of the OPT (including some small Palestinian population centers), Israeli settlements, Israeli military bases, bypass roads connecting the settlements to Israel proper, and large land reserves. Area C, over which Israel retains exclusive control, comprises 60 percent of the West Bank. Due to the non-contiguous geographical nature of the A, B, and C areas, the C areas physically disconnect the territory under PA jurisdiction.11 This limited and fractured autonomy has made it very difficult for the PA to govern effectively, even more so since the beginning of the second intifada.
Perhaps most significantly for present purposes, the Palestinian criminal justice system has limited legal jurisdiction in the West Bank. Palestinian courts can only hear cases arising in A and B areas and the Palestinian police cannot implement court orders in Area C. According to Maha Abu-Dayyeh Shamas, head of the Womens Center for Legal Aid and Counseling, this fractured legal jurisdiction is the most serious impediment to the effective administration of justice in the OPT.12
During the second intifada, the Israeli army re-occupied the A areas of the West Bank, placed the Palestinian civilian population under curfew and closure for extended periods of time, and carried out sustained military operations in heavily populated areas. While these operations ostensibly targeted Palestinian militants who stepped up attacks against Israeli civilians and military during the second intifada, the actual target of the attacks was often PA institutions and personnel, including Palestinian security services, because Israel claimed that the PA was not doing enough to stop the militants.13
During the height of the second intifada in 2001-2003, Israeli re-occupation, movement restrictions and military operations affected all branches of Palestinian government. The PLC was unable to meet except by video teleconferencing. Courts functioned only sporadically, as judges, lawyers, plaintiffs, and defendants were unable to cross checkpoints and reach courthouses and people could no longer afford to pay court fees. There was no one to enforce court decisions, since the Palestinian police largely stopped functioning due to the Israeli destruction of police stations and prisons and targeting of personnel. In December 2001, Israel placed then-President Yasser Arafat under virtual house arrest in his partially destroyed and besieged Ramallah headquarters. He remained there until his hospitalization and death in Paris in November 2004.
Israel and the PA agreed to a loose ceasefire in February 2005, marking an end to the most militarized period of the intifada. Israel began transferring security control over some A areas back to the PA. Since then, the Palestinian police have begun to operate more openly and regularly, but frequent Israeli army incursions continue to limit police movement, and thus effectiveness.
After President Arafats death, the PA organized new elections in January 2005. Mahmoud Abbas, a former Palestinian Prime Minister and Fatah member, became the second Palestinian president. He ran on a platform of ending Palestinian militant attacks against Israel and instituting governmental reform. While he made some important changes (including in the areas of finance and security services), it was not sufficient to shore up waning popular support and confidence in Fatah and the institutions of the PA.
On January 25, 2006 the PLC held its second-ever elections for the national parliament. Hamas, which had decided to end its boycott of the elections and had been priming itself as an opposition party in the lead up, won a decisive victory. It won 44 percent of the popular vote and 56 percent of the PLC seats, or 74 out of 132 seats.14 Womens representation in the new PLC rose to 17 seats, or 13 percent (representing Fatah, Hamas, and independent parties), thanks in part to a new womens quota.15 On February 29, 2006 the new Hamas-led Palestinian government was sworn in. In protest of Hamas longstanding and continuing refusal to recognize Israel or renounce violence, Israel and much of the international community cut all ties with the PA.16 Israel also stopped transferring Palestinian tax revenues totaling U.S. $50-60 million per month. In addition, the United States (U.S.), the European Union (EU) and Japan cut all direct aid to the PA. As of September 2006, the PA has been unable to pay the salaries of its 165,000 civil servants (including 70,000 members of the security services) for six months. Many employees have stopped showing up for work, some can no longer afford the transportation costs of commuting, many teachers and health workers have launched an open-ended strike as of September 2 and UN agencies and other international sources are reporting that the OPT appeared on the verge of economic collapse and humanitarian crisis.17
After coming to power in 1996, the Fatah-led PA lost significant domestic support due to rampant corruption and mismanagement, its inability to protect Palestinian civilians from the Israeli army and to enforce law and order in the OPT, and its failure to deliver any tangible socio-economic improvements as a result of the peace process. In 1999, after the date for final status negotiations expired, Palestinian dissatisfaction with their leadership grew. As one assessment put it:
Even during the height of the intifada, while Palestinians rallied once more behind their ailing and imprisoned president, there were many internal calls for reform. In May 2002 the PLC produced A Statement issued by the Palestinian Legislative Council towards development and reform of the PNA [PA] Institutions. The document called for the separation of the three branches of government; increased transparency and accountability; implementation of all laws and resolutions passed by the PLC; financial reform; reducing the number of security services, unifying them under fewer branches, and bringing them under the authority of the Ministry of Interior and monitoring of the PLC; building the human and material resources of the judiciary; completing legislation to ensure judicial independence; and abolishing the Higher State Security Court.19
One manifestation of the failure of the PA has been the increased lawlessness and chaos on the streets of the OPT. The PA has never enjoyed a monopoly on the use of force in the OPT. This is due on the one hand to the continued Israeli occupation, frequent Israeli military incursions and limited PA jurisdiction over security matters; on the other, it is due to violence by armed groups (or militias) associated with various political factions who are more heavily armed than the Palestinian security forces.20 In addition, many of the Palestinian security forces, of which there are 10 branches,21 do not have a clear chain of command; some have overlapping functions. Arafat designed a system whereby security chiefs reported directly to him. His patronage depended on their loyalty, the various branches constantly competed with one another, and no one commander could become powerful enough to challenge Arafats rule.
As a result of the breakdown of official policing since the beginning of the current intifada in September 2000, Palestinians increasingly have turned to vigilante methods to settle disputes in recent years. Members of the security forces and armed groups have clashed in the streets, injuring or killing bystanders, stormed government buildings, murdered opponents or public officials, and kidnapped foreigners working in the OPT.22 This situation has led to a further deterioration in public confidence in the Palestinian security forces and increased the appropriation of security functions by heads of powerful clans23 and armed groups. After the creation of a Hamas-led government in March 2006, and with the creation of a new Hamas-led security force in May, clashes between the various security forces have increased, especially on the streets of Gaza, with several casualties a week as of September 2006.
We have no law, and no respect for any law. We are not only asking for a change in law and criminal process but change in the entire judicial system.
− Attorney Halima Abu-Sulb, Womens Center for Legal Aid and Counseling, Ramallah, November 14, 2005
The Oslo Accords mandated the creation of a Palestinian Civil Police in A and B areas to keep public order, enforce the law, and carry out criminal investigations. The police received international donor aid and training and were well-respected during the 1990s. During the height of the second intifada, the Israeli army damaged or destroyed numerous Palestinian police stations as well as many vehicles, communications equipment and networks, weapons supplies, and detention centers in the West Bank and Gaza, including the West Bank police headquarters in 2002. The police became virtually non-operational during this period, and while they generally continued to be paid by the PA, some joined the armed groups openly fighting Israeli forces. The situation improved after the ceasefire of 2005 but since March 2006, when the new Hamas-led government was sworn in, Israel ceased all security coordination with the PA and Palestinian police and prosecutors can no longer receive the needed Israeli permission to enter C areas.24
According to a security forces assessment in 2005 by the Strategic Assessments Initiative, the police lack technical capacity; their operational capacity is moderate in Gaza and weak in the West Bank.The police are often unable to pursue or arrest fugitives and have weak judicial capacity, which has led to the emergence of an alternative justice system whereby families and clans replace Civil Police in many respects.There are currently 6,800 Civil Police in the West Bank and 12,000 in Gaza, even though the population of the West Bank is twice that of Gaza.25
One of the greatest technical weaknesses of the Palestinian police is in criminal investigations. One police instructor at the Jericho police academy who received investigative training in India told Human Rights Watch:
While there is a female police unit at national police headquarters in Gaza City, womens NGOs told Human Rights Watch that the unit is largely inactive at the moment.27 There are a small number of female police officers in the Civil Police, usually several at each police station, but they are often non-uniformed and fulfill administrative rather than policing functions. The head of the Jericho police academy told Human Rights Watch that it is very difficult to recruit and train women police due to social and family constraints upon women.28
According to Palestinian law, the public prosecutors office can initiate and supervise investigations into criminal matters and, if it gathers sufficient evidence, prosecute these cases in court. The Attorney General, assisted by four deputy attorney generals (two in the West Bank and two in Gaza) head the prosecutors office. Members of the public prosecutors office supervise investigations that law enforcement officers generally carry out. There are 105 head prosecutors, prosecutors and prosecutors assistants in the OPT; 69 are in Gaza and 36 in the West Bank (even though the population of the West Bank is greater than that in Gaza). The public prosecutors have suffered from conflicts between the Ministry of Justice and the Attorney General based on unclear regulations and procedures governing the division of labor between the two bodies. 29
The Palestinian Independent Commission for Citizens Rights (PICCR) has routinely criticized the public prosecutors office for failing to investigate numerous cases of Palestinians killed by fellow Palestinians on the suspicion of collaborating with Israeli authorities. PICCR has also criticized the public prosecutors office for not conducting regular prison and detention center visits and for failing to secure the release of detainees held unlawfully.30
After coming to power in 1994, the PA inherited a barely functioning, disjointed judicial system neglected during almost 30 years of Israeli occupation.31 The system retains elements of the various foreign legal systems imposed on the OPT over the past several centuries, including the Ottoman, British, Egyptian, Jordanian, and Israeli systems. It suffers from the fragmented legal and territorial jurisdiction established under the Oslo Accords whereby Palestinian courts can hear civil and criminal matters arising only in A and B areas, not C. In addition, under the Oslo Accords, Palestinian courts have no jurisdiction over Israeli civilians (including Israeli settlers living in the OPT) or Israeli security forces operating in the OPT.
A 2001 Human Rights Watch report outlined the PAs failure to build an effective and independent judiciary during the 1990s. As we reported then: The PA [failed] to give sufficient authority, respect, and financial and other resources to the judiciary. The system is plagued by an insufficient number of judges, the lack of properly qualified judges, and a lack of trained judges, prosecutors, lawyers, and court officials.32
The report also detailed instances of interference by the executive authority in hiring and firing judges and the fact that security forces systematically ignore orders of the High Court to release detainees whom they held arbitrarily. The situation has improved somewhat in recent years, after the PLC passed new legislation establishing a Higher Judicial Council.33 In addition, the notorious Higher State Security Court34 has been inactive for several years, although the president has not issued the necessary presidential decree to formally disband the court.35 As documented by Human Rights Watch, the court was known for trials lasting only a few hours where most defendants were convicted solely or principally on the basis of confessions they made while in incommunicado detention.36
The judicial system came to a virtual standstill during the height of the second intifada. It was just beginning to recover in 2005. One attorney told Human Rights Watch, The courts are now a bit better, but the Ramallah court still has too few judges covering so many residents that they cant possibly hear all the cases. I often arrive at the courtroom at 8:30 in the morning for a hearing in one of my cases and find out that the session has been postponed for another six months.37 In late 2005, Human Rights Watch attended an initial hearing in a Ramallah rape case that had been frozen for five years.
The Palestinian judicial system comprises the regular courts (which hear both civil and criminal cases) and shari`a religious courts for matters of personal status (the shari`a courts for Muslims and religious courts for recognized non-Muslim communities). 38
The regular courts are structured in a two tier system plus a Court of Cassation. The first level comprises the Magistrates Courts, which hear civil and criminal cases below a certain penalty or damage value. The 20 Magistrates Courts (six in Gaza and 14 in the West Bank) have a total of 35 judges and a chronic problem of backlog.39 For example, in November 2004, 1,591 cases and complaints were awaiting adjudication at the Qalqilya Magistrates Court by one judge.40
Courts of First Instance act either as second tier courts for cases appealed from the Magistrates level or first tier courts for civil and criminal cases above a certain value. There are 12 courts of First Instance (three in Gaza and nine in the West Bank) with 50 judges. These courts suffer the same backlog as the Magistrates Courts.41 Cases heard initially by the first instance courts can be appealed to the Courts of Appeal (appealed cases from the Courts of First Instance) and there are two appellate courts, one in the West Bank and one in Gaza, with a total of 15 judges.42
The Supreme Court acts as either a Court of Cassation (final court of appeal for cases on civil, criminal, and commercial matters) or a High Court of Justice to deal with administrative cases. In addition, the Supreme Court currently acts as a Constitutional Court until one is established, as stipulated by the Palestinian Basic Law.43 The Constitutional Court has the authority to review legislation and determine its constitutionality, although it has only assumed this role once to date, while reviewing an amended judiciary law in 2005. The Supreme Court is officially based in Jerusalem but it temporarily convenes in two locations: Gaza City and Ramallah. Twenty-two judges sit on the Supreme Court. All of the courts, including the High Court of Justice, face problems in implementing court decisions against governmental bodies, especially the security services. According to the Palestinian Independent Commission for Citizens Rights, which has sent numerous letters regarding this matter to the Ministry of Justice and the PLC, some security agencies, especially the Military Intelligence, still refrain from implementing some of the High Court of Justices rulings.44
The PA has also established special courts including military courts, state security courts, and courts for issues such as taxes and elections. All of these courts are supposed to be established by law, according to the Palestinian Basic Law, but most of them have been established by presidential decree.45
While the Basic Law (2002) and the Law on the Independence of the Judiciary (2002) provide for independence of the judiciary and the establishment of a Higher Judicial Council to oversee the appointment, supervision, training, transfer, and dismissal of judges, there are continued power struggles between the Ministry of Justice and the Higher Judicial Council, due at least in part to a lack of specific procedures and regulations governing the bodies respective functions.
With increased chaos and lawlessness in the OPT, members of the judiciary have become more vulnerable to attacks and intimidation by armed groups and powerful clans. On February 21, 2005, Judge Zuhair Bashtawi, a former deputy head of the Court of Appeals in the West Bank, sent a letter to President Abbas with 12 recommendations for improving the judiciarys performance. His main criticisms included the lack of security, the appointment of incompetent people, a lack of real monitoring and oversight of the judiciary, and politicization of the judiciary. He said:
In April 2005 three people, one armed with a pistol, raided Bashtawis law office and demanded that the judge and his assistant recuse themselves from a particular case. Several months later, the Palestinian Bar Association called a one-day lawyers strike and released a statement criticizing the unsafe working environment for legal professionals, increased vigilantism, and the failure of the PAs legislative and executive branches to protect the judicial system.47
If actually prosecuted, all cases of gender-based violence, such as domestic abuse, incest, rape, or murder of girls and women in the name of family honor, are brought as criminal cases in the regular courts. A woman may also allege domestic abuse against her husband in the shari`a (Muslim religious or personal status) court system, but only in order to prove that she has grounds for divorce based on harm, not in order to bring criminal charges against her husband.
The laws in force in the West Bank and Gaza Strip today are a combination of unified laws that the PLC promulgated since 199648 and the President ratified, and existing Jordanian and Egyptian laws that continue to apply in the West Bank and Gaza, respectively, where no unified Palestinian law has been finalized. In the two areas most relevant to this report, penal and family law, the original Jordanian and Egyptian laws are still applicable, although drafts of a unified Palestinian penal code and unified family law exist and have been widely debated in civil society circles, as detailed in later sections. A number of provisions in both the family and penal law maintain and perpetuate Palestinian womens unequal status.
The Jordanian Law of Personal Status (1976) and the Egyptian Law of Family Rights (1954) govern all family law matters for Muslim residents of the West Bank and Gaza, respectively. These laws discriminate with regard to mens and womens rights in the family. A Palestinian womans ability to enter freely into marriage is limited by requirements under both sets of laws that she has the permission of a male guardian (wali). Both the Jordanian and Egyptian laws allow husbands to divorce their wives verbally while requiring that women obtain a judicial divorce through the court system. Palestinian women can only initiate a divorce on the basis of harm inflicted by her husband (a fault-based divorce). Divorced women are entitled to custody of their children only until the children reach puberty.
Provisions of the penal codes in force in the West Bank and Gaza also discriminate against women.49 There are no specific laws criminalizing domestic or sexual violence within the family and thus, in order to try these crimes, judges apply relevant provisions of the penal law. Jordanian Law No.16 (1960) classifies sexual violence (both rape and incest) under crimes against public morals and ethics, rather than as crimes against the physical integrity of the individual. Rape laws in force in the OPT distinguish between virgin and non-virgin victims of sexual violence, with harsher penalties when the victims are thought to have been virgins. These laws also criminalize abortion in cases of rape or incest, forcing victims of sexual violence to carry their pregnancy to term. Even more disturbingly, laws in force in the West Bank and Gaza relieve rapists who marry their victims from any criminal prosecution. Neither the Jordanian nor the Egyptian penal codes in force in the OPT recognize sexual violence committed within marriage. Article 340 of the Jordanian Penal Law No. 16 (1960), in force in the West Bank, provides for reduced penalties for honor crimes. Under article 340, any man who kills or attacks his wife or any of his female relatives while she is committing adultery is exempt from punishment. Men who kill women whom they find in an unlawful bed may receive a reduced sentence.
Egyptian penal law in force in Gaza also imposes harsher penalties for women committing adultery. A wife is penalized for two years,50whereas a husband is penalized for no more than six months.51For adultery, the evidentiary standards are different for women and men. While a wife is penalized for committing adultery anywhere, a husband must do so in the marital home in order for such an act to be considered adulterous.52 The murder of a wife (but not a husband) in the act of committing adultery is categorized as an extenuating circumstance, thereby commuting the crime of murder to the level of a misdemeanor.53
While the Palestinian Legislative Council (PLC) submitted a new draft penal code for a first reading on April 14, 2003, lawmakers could not agree upon the text, and the draft has been in limbo ever since. Palestinian lawyers and activists have critiqued the draft code for failing to incorporate international standards and for including many of the most problematic, outdated provisions in the currently applied Egyptian penal code of 1937.54 As with current law in effect in the OPT, the proposed law contains reduced sentences for perpetrators of honor crimes and arbitrarily differentiates between the rape of children below the age of 15 and the rape of children between the ages of 15 and 18, and even the harsher penalties for rape of younger children are lower than those imposed by the current Jordanian penal code.55 The PLCs draft also includes an ambiguous and general provision in article 58 that de-criminalizes otherwise illegal acts committed in accordance with shari`a.56 It is unclear how this provision would be interpreted and applied.
Despite some improvements in their status over the past few decades, Palestinian women remain worse off than men by just about every measure. Women still have very few employment opportunities in the formal labor sector. In 2005, 14.1 percent of women aged 15 and older were formally employed, versus 67.8 percent of men in the same age group.57 Of those women employed, almost half worked in the low-paying service sector.58 Palestinian women receive lower wages for the same jobs in all areas. A Palestinian mans average daily wage is 78.1 NIS ($17.35), compared to 63.1 NIS ($14) for a Palestinian woman.59
The Palestinian Labor Law, which took effect in 2000, bars women from dangerous and rough activities, designated by the minister; overtime hours during pregnancy and six months after delivery; and night shifts, except works identified by the cabinet.60 While Palestinian women have the legal right to own land and property and to exercise control over their property, they rarely exercise these rights. A 2005 study by Freedom House, quoting a 1999 Palestinian Central Bureau of Statistics study, found that only 7.7 percent of Palestinian women owned a house or real estate and that only 1 percent of Palestinian women owned a private car.61 The survey also showed that only 20 percent of women claimed their legal right to a share of the family inheritance.62 In 2002, poverty rates among female-headed families reached 30 percent, as opposed to 20 percent in the population at large.63
The criminal justice system only marginally employs women, with women constituting 9 percent of all judges and 12.2 percent of all prosecutors.64 There are no women judges in the shari`a court system or acting as informal judges in the informal justice system. Women make up 31.2 percent of all lawyers in the OPT.65
According to the Palestinian Central Bureau of Statistics (PCBS), while more Palestinian women are illiterate than men (12 percent versus 3.5 percent66), this trend seems poised to change with the current generation, since more girls than boys are now enrolled in the formal education system at both the elementary (93.6 percent of girls versus 92.8 percent of boys) and secondary (75.7 percent of girls versus 67.6 percent of boys) levels.67 While girls sometimes drop out of school in order to get married in their teenage years, boys are more likely to leave school early in order to become income-generators for their families, especially during periods of increased poverty and unemployment, such as during the second intifada.68 Women and men are roughly equal in their representation in institutions of higher education, but as noted in the Palestine Human Development Report of 2004, this has not translated into more women in professional positions.69
One of the positive developments for women in the OPT is the increase in women serving in elected positions. This achievement is due in large part to women activists lobbying for an election quota that was included in the electoral laws the PLC enacted in 2004 (for local elections) and 2005 (for national legislative elections).70 Since that time, the PA has held four out of five rounds of municipal elections across the West Bank and Gaza, the first such elections in 28 years, in which women won an impressive number of seats. In the first municipal elections in December 2004, 139 women ran and 52 won seats on local councils, representing nearly 17 percent of those elected.71 Women achieved similar results in the subsequent rounds of municipal elections. Since 1994 the Palestinian Authority has appointed local councils, and women never exceeded five percent of the total appointees.72 As mentioned above, womens representation increased in the second Palestinian Legislative Council, with women now holding 17 seats, or 13 percent of council seats.
Women continue to be marginally represented in the PA cabinet, with only one out of 24 ministries currently headed by a woman. Dr. Mariam Salih, a newly-elected Hamas PLC member from Ramallah, is the new Minister of Womens Affairs. The greatest number of female ministers in any PA cabinet was in the two years after the first government was formed in 1996, when women served as Minister of Higher Education and Minister of Social Affairs.
Womens second-class status in economic, social and political life translates into a lack of decision-making power in the family, even on the most intimate aspects of their lives. Male relatives (usually their fathers) often arrange marriages for Palestinian girls, even before adulthood. In a survey of 1,446 Palestinian women in the West Bank and Gaza, the PCBS found that only 56.5 percent had chosen their spouse.73 In rural areas, only 36 percent of the 460 women polled had chosen their spouses themselves.74
The Palestinian womens movement has a long history and has played an important role in the quest for Palestinian self-determination in the OPT.75 The movement has often faced tough strategic choices on how to balance their dual commitment to the national struggle and to the feminist struggle.76 Political factions and Islamist groups have attacked the Palestinian womens movement at various junctures, accusing it of being part of a Western conspiracy to destroy Islamic family and social values and questioning its commitment to the national cause.77 Several women NGO activists interviewed by Human Rights Watch related incidents of confrontation, harassment, and intimidation during the course of their work. 78
In the 1990s, after the first intifada and the signing of the Oslo Accords, women activists focused on gender equality in the emerging institutions and laws of the new PA79 In 1994, Palestinian women drafted a Memorandum of Womens Rights and submitted it to the PA80 The document endorsed the international Convention on the Elimination of All Forms of Discrimination against Women and stressed the need for justice, democracy, and gender equality in the nascent Palestinian state structures.81
In 1994, womens organizations and their allies launched an ambitious five-year process called the Model Parliament to debate the inherited Jordanian and Egyptian family laws still in place in the OPT and suggest changes based on gender equity. They then used the final recommendations of the Model Parliament to lobby individual members of the PLC.82 However, the womens movement was divided between those who called for a civil family law and those who felt that their best chance to influence the provisions of a new unified Palestinian family law was to push for a more progressive interpretation of shari`a.
Womens NGO activists told Human Rights Watch that they had convinced the Chief Islamic Justice of the OPT (Qadi al-Quda) to incorporate important safeguards in his draft,83 including: a minimum marriage age of 18 for men and women; curtailing (though not abolishing) mens right to polygamy; easier access to divorce for women through khula (no-fault divorce); additional grounds for divorce including irrevocable differences; sterility as grounds for divorce for both parties; equal division of wealth acquired during marriage; compensation for women who can prove their husbands arbitrarily divorced them; and a state fund to pay maintenance for women and children after divorce. The Qadi al-Quda presented the draft family law to the Palestinian Ministry of Justice in 2002, but the Ministry of Justice is yet to introduce the bill to the PLC for a first reading.
Palestinian women have also been active in networks at the regional and international level. In 1995, a Palestinian delegation participated in the Fourth World Conference on Women in Beijing. Based on the standards set by UN Security Council Resolution 1325 for the inclusion of women in peace processes,84 womens NGOs launched an International Womens Commission in July 2005 that aims to include Palestinian, Israeli, and international women in all future peace negotiations.85 At the beginning of 2005, a network of five womens organizations in Lebanon, Egypt, Jordan, the West Bank, and Gaza created a group called Salma to launch a campaign to criminalize domestic violence.86 The group has drafted a family protection law and has begun trainings and public education on the issue of family violence.87
In addition, womens NGOs launched a Palestinian Violence against Women Forum in 2002, a network of 13 NGOs working collectively to combat gender-based violence. Many of these NGOs already run hotlines and provide legal and social work services for victims of violence. Through the Forum, they have set up an informal referral service so that victims can get specialized advice and services. The Forum is pressing the PA to set up an official governmental referral system. Forum members have also participated in demonstrations, public service announcements, awareness-raising activities, and evaluations of draft legislation concerning violence against women.88
Other achievements of the Palestinian womens movement are the creation of the Ministry of Womens Affairs (MOWA) in 2003, headed until recently by a leading womens activist, Zahira Kamal, and the creation of gender desks within various ministries. The MOWAs mandate includes monitoring the governments compliance with the terms of gender equality laid out in the Basic Law through capacity building at the governmental level, improving the governments policies, laws and legislations, adopting the necessary plans for ensuring the governments commitment to the integration of gender in its development plans, and to the adoption and implementation of positive discrimination policies towards women.89
The Ministry has the authority to review draft laws and propose new ones. However, Ministry staff and womens NGOs complain that the PA often dismisses the Ministrys recommendations and that they receive little financial support.90 For example, the MOWA received only 0.02 percent of the ministerial budget in 2005.91
1 For more information, see Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (Berkeley: University of California Press, 2005) and Raja Shehadeh, Occupier's Law: Israel and the West Bank (Washington, D.C.: Institute for Palestine Studies, 1988).
2 From 1517-1917, the Turks ruled the modern day areas of Israel and the OPT as part of the Ottoman Empire. The British defeated the Turkish army in 1917 as part of World War I and controlled the modern day areas of Israel and the OPT until 1948. Some Ottoman laws and acts, as well as some orders and orders-in-council from the British Mandate, remain in place.
3 Intifada literally means "shaking off" in Arabic. The first intifada was chiefly characterized by nonviolent Palestinian demonstrations, strikes and boycotts against the Israeli administration in the OPT and by Palestinian youths, armed mostly with stones, confronting the Israeli army. See Middle East Research and Information Project, Palestine, Israel and the Arab-Israeli Conflict: A Primer, http://www.merip.org/palestine-israel_primer/toc-pal-isr-primer.html (accessed May 23, 2006).
4 The Arab League founded the PLO in 1964 as the sole legitimate representative of the Palestinian people. The PLO has a legislative body, the Palestinian National Council (PNC), and an Executive Committee elected by the PNC. The PLO holds a permanent observer seat in the UN General Assembly.
5 The various agreements include the Gaza Jericho Agreement in 1994, the Interim Agreement on the West Bank and Gaza Strip in 1995, and the Hebron Agreement in 1997.
6 U.S. President Bill Clinton invited Israeli Prime Minister Ehud Barak and Palestinian Authority President Yasser Arafat to Camp David in the United States in July 2000 to continue stalled pace talks. The summit lasted for two weeks but ended without an agreement.
7 The second intifada erupted at the end of September 2000. The immediate trigger was the visit of then-opposition leader, Ariel Sharon, to a site in East Jerusalem known to Jews as the Temple Mount and to Muslims as the Haram al-Sharif, the holiest Muslim site in Israel/OPT.
8 Office for the Coordination of Humanitarian Affairs, Preliminary Analysis: The Humanitarian Implications of the February 2005 Projected West Bank Barrier Route, February 2005, http://www.humanitarianinfo.org/opt/docs/UN/OCHA/BarrierProjections_Feb05_En.pdf (accessed May 23, 2006).
10 In 1992 Hamas created a military wing known as the `Izz al-Din al-Qassam Brigades. Hamas carried out its first suicide bombing on April 16, 1993. The number peaked during the second intifada, when such attacks killed hundreds of Israeli civilians. These targeted attacks against civilians are crimes against humanity and were documented by Human Rights Watch in the report Erased in a Moment: Suicide Bombing Attacks against Israeli Civilians (New York: Human Rights Watch, 2001), http://www.hrw.org/reports/2002/isrl-pa/. Israel has assassinated many Hamas leaders and operatives, most notably the organizations founder Ahmad Yassin on March 22, 2004 and Dr. `Abd al-`Aziz al-Rantissi on April 17, 2004. On March 17, 2005 Hamas officially endorsed the Cairo Agreement, brokered by the PA and Israel at a summit in Sharm el-Sheikh in February 2005, signaling its desire to enter mainstream politics. By signing on they agreed to a period of calm (Tahdija).
11 See map on page 1.
12 Human Rights Watch interview with Maha Abu-Dayyeh Shamas, director of Womens Center for Legal Aid and Counseling, East Jerusalem, June 14, 2006.
13 Strategic Assessments Initiative, Planning Considerations for International Involvement in the Palestinian Security Sector, an operational assessment prepared by the International Transition Assistance Group, July 2005, http://www.strategicassessments.org/ontherecord/sai_publications/SAI-Planning_Considerations_for_International_Involvement_July_2005.pdf (accessed May 23, 2006).
14 In 2005 the PLC changed the election law and increased the number of PLC seats from 88 to 132, half of which are elected by proportional representation on national party lists and half by regional constituencies.
15 This quota is explained in footnote 70, below.
16 Hamas is listed as a terrorist organization by both the United States and the European Union.
17 According to World Bank estimates, growth per capita in the OPT will fall by 27 percent in 2006 with personal income declining by 30 percent and unemployment nearly doubling from 23 percent in 2005 to 40 percent in 2006. See World Bank sees worst year for Palestinian economy, Reuters, September 13, 2006. According to the United Nations World Food Programme (WFP), 70 percent of Palestinians in Gaza are reliant on food aid; a reported 30 percent increase in the number in just over a year. See 70 per cent of Palestinians in Gaza need international food aid to survive, United Nations News Service, September 19, 2006.
18 Ibid., p.12, n 13.
19 The Statement can be found at http://www.jmcc.org/politics/pna/plc/plcreform.htm (accessed May 23, 2006).
20 Most Palestinian political factions in the OPT have armed groups or military wings affiliated with them. Hamas: `Izz al-Din al-Qassam Brigades; Fatah: al-Aqsa Martyrs Brigade and the Tanzim; Islamic Jihad: Saraya al-Quds; PFLP: Martyr Abu `Ali Mustafa Brigades. Others armed groups, such as the Popular Resistance Committees, are comprised of ex-members of several political factions and their associated militias. In addition, some previously unknown groups claim responsibility for isolated incidents, such as the `Umar bin al-Khattab Brigades or the Popular Army.
21 The security forces are comprised of Military Forces (National Security Forces, Military Intelligence, Military Liaison Force, Force 17, and Maritime Force/Coastal Police); Security Forces (General Intelligence, Preventive Security Organization, Special Forces, and Special Security); Civil Agencies (Civil Police and Civil Defense) and other offices (External Security Office and Office of the National Security Advisor). Ibid., pp. 62-76, n. 13.
22 See field updates and press releases of the Palestinian Center for Human Rights on the Security Chaos and Misuse of Weapons section of the website at http://www.pchrgaza.org/files/weapon/english/weapon.htm such as PCHR Strongly Condemns Attacks on International Institutions and Citizens, March 15, 2006 and Attacks on Public Institutions and Officials Continue, May 28, 2006 (accessed May 30, 2006).
23 In Palestinian society, as in much of the Arab world, social status is based on belonging to a powerful extended family or patrilineal clan (hamula) comprising several extended families with the same last name and originating from a common ancestor. Heads of important clans are often more powerful than elected and appointed officials, security force commanders and high ranking civil servants and sometimes supplant the authority of these officials. See Palestinian National Authority, Palestinian Society, http://www.pna.gov.ps/subject_details2.asp?DocId=161 (accessed May 23, 2006) and Celia E. Rothenberg, A Review of Anthropological Literature on the Palestinian Hamula and the Status of Women, Journal of Arabic and Islamic Studies, Volume 2, 1998-1999, http://www.uib.no/jais/v002/rothen.pdf (accessed May 23, 2006).
24 Strategic Assessments Initiative report, Ibid., n. 13.
25 Ibid. According to the Central Intelligence Agency World Factbook, the population of the West Bank is almost 2.5 million and the population of Gaza is almost 1.5 million, www.cia.gov/cia/publications/factbook (accessed May 23, 2006).
26 Human Rights Watch interview with Palestinian police officer [name withheld], Jericho, November 14, 2005.
27 Human Rights Watch interview with Manal Awad, head of the Womens Empowerment Program, GCMHP, Gaza, November 28, 2005.
28 Human Rights Watch interview with Mahmud Rahal, director of the Jericho Police College, Jericho, November 14, 2005.
29 See the Palestinian Independent Commission for Citizens Rights, The Status of Palestinian Citizens Rights During 2004, The Tenth Annual Report, p. 73-74, www.piccr.org/report/annual04e.html (accessed May 23, 2006).
31 See Glenn E. Robinson, The Politics of Legal Reform in Palestine, Journal of Palestine Studies, Vol. 27, No. 1 (Autumn 1997), pp. 51-60.
32 Human Rights Watch, Israel-OPT Justice Undermined: Balancing Security and Human Rights in the Palestinian Justice System, vol.13, no.4 (E), November 30, 2001, http://www.hrw.org/reports/2001/pa/.
33 The Higher Judicial Council was established by Presidential Decree Number 29 of 2000.
34 The Higher State Security Court was established by presidential decree in 1995 in Gaza to try crimes relating to the internal and external security of the state.
35 On July 27, 2003, the former Minister of Justice issued a written decision ending the use of the state security courts, including the Higher State Security Court, and moving the cases of the state security courts to the ordinary courts. Nevertheless, the ministerial decision was not fully applied. For example, none of those condemned by the Higher State Security Court were re-tried in regular courts and on June 12, 2005, President Mahmoud Abbas approved the execution of four people on death row; one of whom was convicted by the Higher State Security Court in Gaza on September 11, 2000. This information is taken from Asem Khalil, Legal Framework for Palestinian Security Governance, Palestinian Security Sector Reform, Geneva Centre for the Democratic Control of Armed Forces, 2006.
36 Ibid, n. 32.
37 Human Rights Watch interview with Halima Abu-Sulb, attorney, Womens Center for Legal Aid and Counseling (WCLAC), Ramallah, November 14, 2005.
38 Information on the court system is taken from annual reports of the Palestinian Centre for Human Rights, available at www.pchrgaza.org and the Palestinian Independent Commission for Citizens Rights available at www.piccr.org and Nathan Brown, Arab Judicial Structures, A Study Presented to the United Nations Development Program, http://www.pogar.org/publications/nbrown/palestine.html (accessed May 23, 2006).
39 The Palestinian Independent Commission for Citizens Rights, Report on the Current Situation of Judicial Power and the Justice System in 2005, March 2006, p. 47 [on file with Human Rights Watch].
40 Ibid., p. 65, n. 29.
41 Ibid., n. 39.
43 While President Abbas endorsed a law to establish the Constitutional Court (Law number 3 of 2006) in early 2006, controversy erupted over the way the law was promulgated and as a result its legal status remains unclear and the court has yet to be formed.
44 Ibid., p. 71, n. 42.
45 Email from Asem Khalil, Associate Researcher at Birzeit University and head of research at the Institute of Law, June 24, 2006.
48 The predecessor to the PLC, the Palestinian National Council, also passed 21 laws which are in force today.
49 The Jordanian Penal Law No.16 (1960) and Egyptian Penal Law No. 58 (1937) are still applied in the West Bank and Gaza, respectively.
50 Egyptian Penal Law No. 58 (1937), article 274.
51 Egyptian Penal Law No. 58 (1937), article 277.
53 Article 237 of the Egyptian Penal Code reads Whoever surprises his wife in the act of adultery and kills her on the spot together with her adulterer-partner shall be punished with detention instead of the penalties prescribed in articles 234 [permanent or temporary hard labor] and 236 [hard labor or imprisonment for a period of three to seven years].
54 See Al Haq report, Notes of the Legal Civil Society on the Palestinian Penal Draft Code, on file with Human Rights Watch.
55 The draft imposes a three year sentence for these crimes as opposed to the minimum seven year sentence with hard labor included in Jordanian Law No. 16 (1960).
56 Al Haq, Notes of the Legal Civil Society on the Palestinian Penal Draft Code, on file with Human Rights Watch.
57 Palestinian Central Bureau of Statistics, Women & Men in Palestine Issues & Statistics, 2005, p. 41, http://www.pcbs.gov.ps/DesktopModules/books/booksView.aspx?tabID=0&lang=en&ItemID=1&mid=11239 (accessed May 23, 2006).
58 Ibid., p. 43.
59 Ibid., n. 9.
63 Ibid., n. 9.
64 Ibid., pp. 51-52, n. 57.
66 Ibid., p. 23, n. 57.
67 Ibid., pp. 26-27, n. 57.
68 The dropout rate for boys is 3.6 percent and the rate for girls is 2.3 percent. Ibid., p. 29, n. 57.
69 Ibid., n. 9.
70 Local Election Law Number 5 of December 2004 stipulates that all election lists for local council elections must give women two slots. The law also reserves two places for women in the local councils (made up of nine to 13 members). Local Election Law Number 9 of 2005 states that political parties must have at least one woman among the first three names on the national list, at least one woman among the next four names, and one woman among every five names for the rest of the list, guaranteeing about 20 percent women among the candidates. Half of the members of parliament are elected through proportional representation on a national list system, while the other half are elected in single candidate district lists. In the 2006 election, all 17 women were elected to parliament via the national lists, which were subject to the legal quota, while none of the women candidates in the single member districts were elected. See Global Database of Quotas for Women, http://www.quotaproject.org/displayCountry.cfm?CountryCode=PS (accessed May 23, 2006). For a detailed history of womens lobbying to introduce election quotas see Amira Hass, Arafats Feminist Legacy, Haaretz [English online edition], April 12, 2005, www.haaretzdaily.com/hasen/pages/ShArt.jhtml?itemNo=563770 (accessed May 15, 2006).
71 Ibid., n. 9.
72 Ibid. For more information on the history of local council election and appointment in the West Bank and Gaza, especially since the beginning of the Israeli occupation in 1967, see Abdul Nasser Makky, The Electoral Dimension in Local Government in Palestine, www.mofa.gov.ps/articals/pdf_files/electoral.pdf (accessed May 23, 2006).
73See Palestinian Central Bureau of Statistics table on Percentage Distribution of Married Females (Aged 18 Years and Above) According to the Person Who Took the Decision for their Marriage, by Region and Type of Locality, http://www.pcbs.gov.ps/Portals/_pcbs/gender/oship_3b.aspx (accessed April 21, 2006).
74 See Palestinian Central Bureau of Statistics table on Percentage Distribution of Married Females (Aged 18 Years and Above) According to the Person Who Took the Decision for their Marriage, by Region and Type of Locality, http://www.pcbs.gov.ps/Portals/_pcbs/gender/oship_3b.aspx (accessed April 21, 2006)
75 Nahla Abdo, Women and the Intifada: Gender, Class and National Liberation, Race and Class 32, 4 (1991), p. 19-34; Rita Giacaman and Penny Johnson, Palestinian Women: Building Barricades and Breaking Barriers, in Intifada: The Palestinian Uprising Against Israeli Occupation, edited by Zachary Lockman and Joel Beinin (Boston: South End Press, 1989) and Islah Jad, From Salons to the Popular Committees: Palestinian Women, 1919-1989 in Intifada: Palestine at the Crossroads, edited by Jamal R. Nassr and Roger Heacock (New York: Praeger Publishers, 1990).
76 See Soraya Antonius, Fighting on Two Fronts: Conversations with Palestinian Women, Journal of Palestine Studies 9, 3 (Spring 1979), pp. 26-45 and Souad Dajani, Between National and Social Liberation: The Palestinian Womens movement in the Israeli Occupied West Bank and Gaza Strip, in Women and the Israeli Occupation: The Politics of Change, edited by Tamar Mayer (New York: Routeledge, 1994).
77 See Rema Hammami, The Womens Model Parliament and Reform of Personal Status Law, September 2000, pp. 5-6, www.ids.ac.uk/ids/civsoc/final/palestine/pal1.html (accessed May 23, 2006).
78 For more information, see Chapter III.
79 Ibid, n. 77.
80 The Palestinian National Authority Inter-Ministerial Committee for the Advancement of Women, The Status of the Palestinian Women five years after Beijing 1995-2000, 2002, p. 31, http://home.birzeit.edu/wsi/All%20Publicaitons/files/Gov%20Report%20on%20Women%20Status.pdf (accessed May 23, 2006).
83 In 1998, then-President Arafat tasked Taysir al-Tamimi, the Chief Islamic Justice of the OPT (Qadi al-Quda), with drafting a unified Palestinian family law.
84 United Nations Security Council, Resolution 1325 (2000), S/RES/1325 (2000) http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/7f1629999f97c0a8c1256a0900302211?Opendocument (accessed May 23, 2006).
85 International Womens Commission Established by Palestinian, Israeli and International Women for a Just and Sustainable Peace, UNIFEM press release, July 28 2005 www.peacewomen.org/resources/OPT/IWC2005.html (accessed May 23, 2006).
86 Human Rights Watch Interview with Manal Awad, head of the Womens Empowerment Project, Gaza Community Mental Health Program, Gaza, November 28, 2005. The participating Palestinian organizations are the Womens Center for Legal Aid and Counseling in the West Bank and the Womens Empowerment Program, Gaza Community Mental Health Program.
88 Human Rights Watch interview with Ohayla Shomar, director of Sawa, East Jerusalem, November 9, 2005.
89 Ministry of Womens Affairs Action Plan for 2005-07, issued September 2004, on file with Human Rights Watch.
90 Human Rights Watch interview with Rose Shamali, WATC, Ramallah, November 10, 2006.
91 See introductory editorial in the Womens Affairs Technical Committee newsletter, The Voice of Women (Sawt al-Nissa), No. 227, October 27, 2005, p. 1 [on file with Human Rights Watch]. Editorial in the Womens Affairs Newsletter.