While the Palestinian Authority is not an independent sovereign state able to sign and ratify international human rights treaties, it has unilaterally committed itself to abide by international law. PA leaders have pledged repeatedly in meetings with international human rights organizations and in radio broadcasts, as well as in the Oslo Accords, that they intend to abide by internationally recognized human rights standards.
Article 10 of the draft Palestinian constitution (Basic Law289) states that: Basic human rights and liberties shall be protected and respected and that the Palestinian National Authority shall work without delay to become a party to regional and international declarations and covenants that protect human rights. Moreover, article 9 of the Basic Law stipulates that: Palestinians shall be equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability. Under the Protocol Concerning Redeployment of the Interim Agreement of September 28, 1995, the PA also committed that its police would exercise powers and responsibilities to implement the memorandum with due regard to internationally accepted norms of human rights and the rule of law, and will be guided by the need to protect the public, respect human dignity, and avoid harassment. Article 9 of the law creates an important foundation for equality and non-discrimination in the Palestinian legal system. However, if this commitment is not translated into tangible legal protection for all members of Palestinian society, including women, it will ring hollow.
Israel also retains responsibilities for the implementation of international human rights treaties that it has ratified in areas under its control such as the Occupied Palestinian Territories, as reaffirmed by the International Court of Justice in its Advisory Opinion. In areas where competence for implementing the rights in the Covenants has been transferred to the PA, Israel remains under an obligation not to raise any obstacle to the exercise of such rights.290 Thus, for example, Israel should not undermine the ability of Palestinian judges, police officers, forensic doctors, lawyers, and social service providers to move within and between the West Bank, Gaza and Israel in order to carry out their job or undertake additional training.
The Right to Non-Discrimination and Equality before the Law
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires that states take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.291 It obliges states to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation and to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. CEDAW requires governments:
In violation of the PAs commitments, a host of discriminatory laws and practices persist in the West Bank and Gaza. These laws deny Palestinian women their right to equality before the law enshrined in a series of international conventions, including the International Covenant on Civil and Political Rights (ICCPR). The ICCPR specifically states that men and women should enjoy equal access to all the civil and political rights set forth in the covenant. In particular, article 26 states:
Contrary to all these provisions, legislation in force in the OPT is explicitly discriminatory on the grounds of sex with women facing serious disadvantages both in law and in practice as illustrated in this report. While some of these laws are gender neutral on their face, in reality they affect Palestinian women almost exclusively. They include legal loopholes that ultimately absolve rapists of punishment and fail to recognize sexual violence committed within a marriage. The law also denies children who are victims of incest the right to file sexual abuse charges. Only male family members, who may be the perpetrators of abuse, are granted this right. These laws also criminalize abortion in cases of rape or incest, forcing victims of sexual violence to carry their pregnancy to term.
CEDAW provides that states shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.293 In particular, states are required to afford to women the right to enter into marriage only with their free and full consent.294 When Palestinian police officers and ministry of social affairs staff at the Bethlehem Home for Girls opt for mediation and encourage marriage between a rapist and his victim, they place Palestinian women and girls in a coercive situation denying them the right to enter into marriage with free and full consent.
The CEDAW Committee, which monitors the implementation of CEDAW convention, has explicitly noted that states also have an obligation to enact legislation to remove the defence of honour in regard to the assault or murder of a female family member.295 Echoing these views, the Committee on the Rights of the Child noted that States parties should take all effective measures to eliminate all acts and activities which threaten the right to life of adolescents, including honour killings.296 By failing to deter, investigate, prosecute, or punish the murder of women under the guise of honor, the PA is allowing a practice that is discriminatory and violates a womans right to life to persist.
The involvement of Palestinian prosecutors and forensic doctors in the forcible infliction of virginity exams violates guarantees of freedom from discrimination found in CEDAW and the ICCPR. Such exams also violate provisions of the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.297 When conducted against the will of the girl or woman and with no medical justification, the examinations are themselves a form of sexual abuse. They are degrading and intimidating, both as a physical violation and for the threatened consequence of loss of family honor.
International human rights law recognizes state accountability for abuses by private actors and requires states to show due diligence in preventing and responding to human rights violations. In General Recommendation 19, the CEDAW Committee emphasized: States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.298A states consistent failure to do so when women are disproportionately the victims amounts to unequal and discriminatory treatment, and constitutes a violation of the states obligation to guarantee women equal protection of the law.
The CEDAW Committeeidentified key steps necessary to combat violence against women, all of which the PA should strive to undertake under its authority:
As the findings of this report demonstrate, the PA is failing to take all necessary measures to safeguard the rights of Palestinian women and girls from violations by third parties. On the contrary, laws in force in the West Bank and Gaza have led to virtual impunity for perpetrators of such violence and have deterred victims from reporting abuse. They deny victims their rights to protection, non-discrimination and an effective judicial remedy for abuse, and fail to provide any real deterrent or punishment to perpetrators of violence against women and girls. The PAs failure to establish a comprehensive and institutionalized mechanism to address violence against women has also left Palestinian women and girls with little protection from sexual violence.
Beyond its status as sex-based discrimination under international human rights law, sexual violence infringes upon sexual rights and the right to bodily integrity. The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to bodily integrity through its protections for security of person.300
Human Rights protections against sexual violence also apply to persons under 18. The Convention on the Rights of the Child (CRC) states that children must be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse and ensure that victims of such acts receive legal and psycho-social redress.301
Violence prevents women from exercising a host of other rights. These rights include the right not to be subject to cruel, inhuman or degrading treatment or punishment,302 security of person,303 and in extreme cases, the right to life.304 The CEDAW Committee also noted that gender-based violence is a form of discrimination that seriously inhibits womens ability to enjoy rights and freedoms on a basis of equality with men, including the right to the highest attainable standard of physical and mental health.305
The Palestinian Authority has failed to create an effective institutional framework to prevent violence against women and girls, sanction these abuses when they occur, encourage victims to report acts of violence and protect them from further violence. The Palestinian police force lacks the expertise, and apparently the will, to deal with cases of violence against women in a manner that is effective, sensitive to the needs of victims, and respectful of their privacy. Meanwhile, the absence of medical guidelines for doctors also seriously affects the quality of medical treatment afforded to female victims of violence.
The PA has not taken the necessary steps to ensure access to justice for victims of sexual violence. In violation of international law, Palestinian women and girls who report abuse to their families or the authorities may be forced or coerced to marry their rapist or a stranger to erase the abuse before the case ever reaches the prosecutors office or the courts.306These forced marriages have been condemned as a harmful traditional practice and a form of gender-based violence.307
According to the CEDAW committee, gender-sensitive training of judicial and law enforcement officials is essential for the effective implementation of the Convention. The implementation of the UN General Assemblys Resolution on Crime Prevention and Criminal Justice Measures to Eliminate Violence against Women could greatly improve the Palestinian polices response to violence against women and girls. The resolution, among other things, urges governments to: ensure that the applicable provisions of law, codes, and procedures related to violence against women are consistently enforced ; develop investigative techniques that do not degrade women subjected to violence and minimize intrusion ; ensure that police procedures, including decisions on the arrest, detention and terms of any form of release of the perpetrator, take into account the need for the safety of the victim and that these procedures also prevent further acts of violence; and empower the police to respond promptly to incidents of violence against women.308
290 See the International Court of Justices Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm (accessed August 22, 2006), para. 112.
291 Article 2, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46, entered into force September 3, 1981.
292 Ibid., article 5(a).
293 Ibid., art. 16(1).
294 Ibid., art. 16(1)(b).
295 CEDAW Committee, General Recommendation 19, para. 24 (r)(ii).
296 CRC General Comment 4 (Thirty-third session, 2003): Adolescent Health and Development in the Context of the Convention on the Rights of the Child, A/59/41 (2004), para. 24.
297 See Convention on the Elimination of All Forms of Discrimination against Women, article 2 and ICCPR, articles 3 and 26. See also Universal Declaration of Human Rights, article 7.
298 CEDAW Committee, General Recommendation 19, Violence against Women, UN Doc.A/47/38. para. 9.
299 CEDAW Committee, General Recommendation 19, Violence against Women, UN Doc. A/47/38, para. 24 (t).
300 ICCPR, art. 9. The CEDAW Committees General Recommendation 19 on gender-based violence invokes the right to liberty and security of person. CEDAW Committee, General Recommendation 19, para. 7.
301 Convention on the Rights of the Child, article 19. Late President Yasser Arafat pledged his commitment to the Convention on the Rights of the Child on April 5, 1995. See Secretariat of the National Plan of Action for Palestinian Children, Child Protection in the Occupied Palestinian Territory: A National Position Paper, June 2005.
302 The right to be free from torture and cruel, inhuman or degrading treatment is provided for in article 7 of the International Covenant on Civil and Political Rights (ICCPR), 999 UNT.S. 171, entered into force March 23, 1976.
303 UDHR, art.3, ICCPR, art.6.
304 Article 6 (1) of the ICCPR states that every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
305 CEDAW Committee, General Recommendation 19, paras. 1, 7. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) also provides for the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. G.A. res. 2200A (XXI), 21 UN GAOR Supp. (no. 16) at 49, UN Doc. A/6316 (1966), 993 UNT.S. 3, entered into force January 3, 1976.
306 The International Covenant on Civil and Political Rights (ICCPR) states that marriage should be entered into only with the free and full consent of the intending spouses. ICCPR, Article 23(3). In addition, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, UN Doc. 521 UNT.S. 231, which entered into force Dec 9, 1964, obliges states to:
307 See Committee on the Rights of the Child, General Comment 3, para.11 and CEDAW Committee, General Recommendation 19, para.11.
308 See United Nations General Assembly Resolution on Crime Prevention and Criminal Justice Measures to Eliminate Violence against Women, UN Doc. A/RES/52/86, February 2, 1998.