Palestinian women: their future legal rights.

Wing, Adrien Katherine

PART I. INTRODUCTION

PALESTINIANS ARE CURRENTLY ENGAGED IN DISCUSSING issues with the Israeli government related to their control of a future Palestinian entity. Additionally, President Arafat has recently appointed a high legal commission, whose task it is to draft a Basic Law which will serve as an interim constitution. One area for future consideration will be a re-examination of the customary and religious traditions which play a large social and legal role in their culture.(1) Both traditions sanction differential treatment on the basis of gender. This article confronts the question of how current and future Palestinian political and community leaders can begin to think about modifying customary and Islamic norms to meet a declared national goal in the 1988 PNC Declaration of Independence of improving the legal status of women. Since Palestinians do not currently control the various legal regimes applicable to them, it is probable that most of the suggestions proposed in this article will not be able to be fully considered until the autonomy period.

The issue of improving women's legal status is profound because deeply rooted customary and religious attitudes are difficult to eradicate through the passage of new laws, even if imposed by newly elected popular regimes. Efforts to grant women a legal status not on a par with their social and cultural status often fail due to lack of legitimacy in the community. Often women's actual social status under custom is better than their status under religious law, but is worse than their position under secular law.(2) While some sectors of the society will favor equalizing women's status, others may vehemently oppose such reformation. In the Occupied Territories, sizable communities of Islamic fundamentalists and other traditionalists fall into this latter category.

The analysis of potential legal reform is intricate because of the complex intertwining of customary and religious heritages.(3) Much of what is considered Islamic was drawn from pre-existing Seventh Century customary law, and much of what is considered custom has been influenced by Islamic precepts.(4) Also, both Islam and custom have been impacted by colonial law, making what today is called custom or religion, in actuality, a response to that impact as well.(5) It is therefore difficult to delineate the influence of the two traditions as opposed to other influences.

Nevertheless, Part II of this article attempts to appraise the role that custom and religion have played historically with respect to women's rights. Regarding the role of religion, this part details the impact on women's legal status of the Islamic heritage of the vast majority of Palestinians. While there are probably many possibilities for improving the status of women, Part III examines three interrelated options. Part IlIA begins the discussion for ameliorating that status by focusing on the potentiality for reinterpretation of Islam as proposed by Islamic and feminist scholars. Part IIIB highlights options for codification of rights through the adoption of a European-style civil or personal status code as has been done by most of the states in the region. In some cases, these codes elaborate upon Islamic principles, and in other instances clearly contradict those principles. The ultimate goal, in my view, should be for the codes to aim for compliance with the norms of international human rights conventions. Part IIIC proposes building upon changes introduced by the Intifada, and incorporating them into post-Intifada custom and religious practice, whether codified or uncodified. Part IV concludes that successful legal transformation is only likely to occur to the degree it reflects other societal change.(6) There is some cause for limited optimism in the Palestinian context due to the modifications wrought by the lntifada.

PART II. THE IMPACT OF CUSTOM AND ISLAMIC HERITAGE ON WOMEN'S RIGHTS

A. Customary Law

The most ancient legal tradition in the Occupied Territories today is the customary law known as urf (that which is known). Urf handles disputes outside the official civil or religious courts on the basis of traditional oral customs and norms that stress conciliation, mediation, and family and group honor.(7) There are a whole range of offenses concerning the status of women, who are considered repositories of family and clan honor. A case of honor (qadiyat arad) is synonymous with sexual assault against women.(8) The judgments can run into the thousands of Jordanian dinars. The amount depends upon such factors as whether the violation was physical or verbal, whether she was fondled through her clothing, or whether her dress was actually lifted, and the distance the violation occurred from her home. If the violation is felt to be the woman's fault, the men in her "dishonored" family would feel customarily justified in severely punishing her or even killing her.(9) While the jurisprudence is urf, it is represented as being consistent if not identical to Islamic law,(10) an example of the intertwined nature of the two traditions. Actually, none of these arad determinations are covered by Islamic law.(11)

In the view of feminist scholars, the differential treatment of women under custom is due to the ongoing existence of patriarchy.(12) This stems from historical realities where the physically strongest were responsible for the protection of the family. Thus, gender roles were consigned in such a way so that men were the protectors and providers and women were the child rearers and nurturers.

This customary condition intensified in the context of various occupations by Ottoman, British, Jordanians, Egyptians, and Israelis. Custom and religion became psychological and social refuges against foreign penetration,(13) providing the basis to confront or at least survive the incursions. These also were traditions with which the occupiers tampered the least, being primarily concerned with areas affecting their ability to physically or militarily control the population.

This history of multiple occupations has further reinforced the subservient role of women. One of the few areas within the purview of the subordinated men was oversight of their women. For example, if men were asked why they would not let women have more freedom they would say, "What is left for us? We don't have land, homes or identity -- at least let's have our honor."(14) Additionally, the protection of arad (honor) was intertwined with the protection of ard (land).(15) According to Egyptian feminist Dr. Nawal el Saadawi, one of the factors that caused some Palestinians to leave the West Bank during the 1967 war was the perceived need to protect the honor of their women.(16) As such, loss of control over the all-important public aspects of male lives, including land, was counterbalanced by the maintenance and strengthening of male control over private aspects, including female lives. The centrality of honor thus could remain intact in the private sphere.

Women have often supported the notion of their own subordination, especially in the context of foreign occupation that threatens the entire social fabric. While a few may see female liberation from male patriarchy as inextricably linked with the national liberation struggle, many more women, including the politically active, may be concerned with day to day physical and mental survival under the combined impact of both patriarchy and foreign domination. Like many men, these women will find reliance on custom as both necessary and desirable, one area where their own culture is reaffirmed. As one female political activist said, "If a family can not educate all the children, the man must be chosen, because he will be the breadwinner and the head of the household."(17)

B. Islamic Religious Law

With respect to the rights of women, the sharia was a vast improvement over Seventh Century customary law. Rather than being regarded as the mere chattel of their husbands, women were given an independent legal personality, and allowed to own and inherit property in their own right. The sharia also restricted polygamy to four wives, permitted women to obtain divorces on certain grounds, and provided for maintenance. While these rights may not currently appear significant to many, they must be viewed in an international historical context in which they compared quite favorably with other cultures including the West, up until the Nineteenth Century.(18) On the negative side, the sharia sanctions differential treatment of women in areas of marriage, divorce, and inheritance.

In the Occupied Territories, Islamic law is administered by sharia courts, which have decided disputes on matters of personal status (marriage, divorce, child custody, alimony) and inheritance, since the Eighteenth Century.(19) Sharia courts do not independently interpret personal status matters directly based on Qur'anic sources. Since Jordanian law still generally applies in the West Bank,(20) the sharia courts there utilize the 1976 Jordanian Law of Personal Status which is based upon the Hanafi school of jurisprudence.(21)

Since it is this code which Palestinian decision-makers will have as their starting point for making future modifications in women's rights, an overview of its provisions is appropriate. The law determines that the age of legal capacity for marriage is fifteen for women and sixteen for men.(22) Under the qawama concept, a woman marrying for the first time must obtain the consent of her closest male relative from her father's side, regardless of her age.(23) A woman must also have a male guardian, or wali, contract the marriage, whereas a man can do it for himself. If there is no male relative, the sharia judge may act as guardian.(24) Further, Muslim women may not marry non-Muslim men.(25) Also, the marriage contract must have at least one male witness, and it takes the testimony of two women in lieu of one man.(26) The bride price (mahr), which exists under both custom and religion, must be paid to the woman.(27) One of the problems, however, is that the father or grandfather is authorized to receive the amount on behalf of the bride, which clearly invites abuse and incidents where women do not receive their mahr.(28)

The law provides that the husband has the obligation to support his wife, and she has the corresponding duty to obey him (taa).(29) Polygamy is permitted, and the man does not have to inform his other wives of his intent.(30) He can not, however, house them on the same premises without their specific consent.(31) It has been estimated that the rate of polygamy is 5-10% in some villages.(32) The wife must move wherever the husband specifies, and loses her maintenance rights if she disobeys.(33) She can not leave the house, even to work, without permission, or she loses her maintenance as well.(34)

With respect to divorce, the law permits the husband to unilaterally divorce his wife with no judicial action (talaq).(35) Divorce starts as a revocable event and later becomes permanent. Husbands can divorce a wife three times without fully terminating the marriage, just by the oral announcement, "I divorce you."(36) The wife must wait a three month period (idda) before she can remarry,(37) but if the husband changes his mind within the three months, she must resume the marriage.(38) The divorce is final only if he divorces her three times on three separate occasions.(39) Each time a husband divorces a wife, she has to leave the house since it belongs only to him.(40) The wife is entitled to alimony to meet minimal needs.(41) If the sharia judge with whom the husband registered the divorce thinks the divorce was arbitrary, he can order compensation amounting to one year's alimony.(42) Needless to say, the divorced woman is often in a financially precarious position.

Palestinian women can only divorce under Jordanian law if they meet one of the authorized grounds: impiety;(43) incurable skin or sexual disease;(44) mental disease;(45) desertion of more than one year;(46) inability to pay mahr;(47) inability to provide maintenance;(48) or inability of the wife to live with the husband.(49) If the divorce is requested on medical grounds, the husband is given one year to get medical advice.(50) The divorce is only granted if the husband does not recover during the year. Beating also constitutes a grounds for divorce.(51) The law does allow the wife to specify in the marriage contract that she can get divorced without judicial process. She can also stipulate that polygamy is a grounds for divorce or that she has the right to work.(52) Such stipulations are rarely made,(53) indicating either a reluctance to defy local custom or a lack of knowledge about this option.

With respect to child custody, the purpose is to insure that the children remain in control of the family of the father. The ex-wife can keep the children until they reach puberty,(54) unless she remarries before then to someone outside her husband's family. Then she may lose custody of a son at age nine and a daughter at age eleven.(55)

PART III. LEGAL REFORMS

This part of the article discusses major possibilities for legal reform. Before revising the present system, Palestinian leaders might consider whether they are interested in tinkering, following, or leading law reform in each of the areas under consideration.(56) Tinkering implies accepting the legal status quo, and merely making tiny adjustments around the margins, e.g. hiring more judges if the backlog becomes overwhelming.(57) Following law reform responds to societal change, such as lowering the voting age to reflect the perceived increased maturity of youth. Tinkering and following reforms are least likely to be resisted by the public since they do not greatly impact the existing legal regime or social customs. Leading law reform, on the other hand, utilizes law to implement societal change rather than merely respond to such modifications. While leading law reform characterizes the bulk of modern major law reform,(58) it is often the most likely to be resisted since it greatly impacts existing societal customs and religious norms. In some instances, Palestinian leaders may prefer tinkering or following reform to minimize societal upheaval in a population that has undergone massive disruption over the twenty-five years of occupation. In other cases, leaders may decide that the particular legal principle is important enough to undertake leading reform, in spite of predictable opposition, especially from traditionalist groups.

A. Islamic Reinterpretation

Secularization, external cultural influences, and international human fights conventions have transformed the minds of many women and men in the Middle East to accept less inequality between the sexes. They grapple with how to bring the balance down on the side of equality in the face of proponents of more conservative interpretations of sharia.(59) As early as the Nineteenth Century, Muslim feminists, liberals and leftists called for sharia reform, especially in the area of personal status. Today, there is a dialectical relationship between religion and government in which Islamic doctrines, and clerics espousing conservative reform, are impacting governments and legal systems, but in which the governments are also increasingly able to exert reforms and control over many aspects of Islamic law and religion.(60) With the exception of Saudi Arabia, nations have revised these laws in a piecemeal fashion. In a few places, the modifications have been quite extensive examples of leading law reform.(61) Due to both fundamentalist pressures and an increasing realization of and respect for the influence of religion in Muslim society, many current reformers feel the need to ground their demands for change not in calls for secular modernism, but in a re-examination of the sharia principles and other sources of law.(62) This could be viewed as attempts to characterize legal change as mere tinkering, rather than the leading reform most likely to inspire organized opposition. The reformers believe that Islam can not be abandoned to the sole province of traditionalists. They want to show that the rights of women are consonant with Islamic law, rather than merely alien western notions. They know that they must use imaginative techniques that maintain and enhance the legitimacy of Islam and still provide for improvement in the status and rights of women.(63)

Some reformers are involved in reappraising the theological justifications for restrictions on women's rights, and have found these justifications are "patriarchal attitudes and cultural traditions disguised as religious norms."(64) But they realize that facile adoption of western feminist notions that would constitute clear examples of leading an alien law reform is not appropriate.(65) Instead they are attempting to theorize methodologies based upon the historical and cultural realities of Muslim women that could be interpreted as tinkering or following reform. Counterbalancing this push to liberalize, fundamentalists and other traditionalists have been calling for strict interpretation of Islamic principles, rejecting new reform and repealing pre-existing reforms.

Palestinian decision-makers interested in improving the status of women can examine the reinterpretations of sharia that have been adopted by various countries.(66) For example, Tunisia found an Islamic justification for abolishing polygamy. Under the Qur'an it is stated that men must treat each wife equally. Since it is actually physically impossible to treat separate unique individuals in an identical fashion, polygamy can not be rationalized.(67) Palestinian leaders would have to deal, however, with the traditionalist response that polygamy would not be permitted in the Qur'an at all, if it were impossible to effect in an appropriate manner. A potential rejoinder is that the prophet Muhammad was not generally in favor of polygamy, and therefore meant it to be extremely difficult to undertake.(68)

In addition to examining the experience of various countries in reinterpreting the sharia, Palestinians can also peruse the writings of the relatively few scholars that advocate more rights for women.(69) For example, Professor Abdullahi Al-Na'im of Sudan offers a reinterpretation of qawama, the male guardianship provision. The Qur'anic verse presents qawama as based upon two conditions: male physical superiority and financial support of women. Physical strength, however, is not relevant in the modern era where the rule of law governs over brute force. Also, in the present more women are able to work outside the home and become economically independent of men. Thus since neither of the two historical conditions is necessarily applicable today, the concept of qawama could be revised.(70) Professor Al-Na'im also thinks that reform efforts can be justified today given that there are aspects of the sharia that have been modified and generally accepted. For example, Muslim scholars quoted from the Qur'an throughout the Middle Ages to justify slavery. No one would justify it today.(71) Thus, Palestinian leaders could use the reasoning of Professor Al-Na'im to modify qawama as well as other concepts. These revisions could be characterized as following reform since societal change has already occurred and the law is merely attempting to keep up with societal needs.

Another possibility for Palestinian decision-makers is to engage in reinterpretive efforts of their own devise. The fact that custom came to be part of Islamic law can also help Palestinian reform efforts because "the inclusion of modern social standards or customs can be viewed as consistent with the manner in which law had been formulated to meet particular social needs in the past?"(72)

B. Codification of Rights

This subpart discusses the possibilities for adoption of revised or even new personal status and other codes to improve the situation of Palestinian women. Such codes can be based upon the reinterpretations of sharia discussed in the previous section and depicted as tinkering or following reform, in order to garner the least societal resistance. Alternatively, the Palestinians could engage in leading law reform by adopting wholesale revision of various laws on the basis of international human rights conventions. This section first discusses the options for tinkering with the status quo or engaging in following law reform, and then focuses on the leading option.

Various alterations could be proposed to amend the Jordanian Personal Status Code. These options consist of tinkering or following law reform because the fundamental patriarchal structure of the law based on religion and custom would be retained. In other Muslim countries, codes have brought changes in several areas. Some nations, for example, have introduced legislation establishing minimum ages for the capacity to marry.(73) States have also restricted or banned the husband's right to be polygamous.(74) Restrictions have also been placed on the husband's right to unilaterally terminate the marriage.(75) Mothers have been granted longer custody of children(76) and inheritance codes have been amended as well.(77)

The Palestinians could similarly reform the Jordanian Personal Status law. For example, the minimum age for marriage could be raised to eighteen. The unrestricted talaq power to unilaterally terminate the marriage could be limited by requiring court mediation, registration, or other intervention. Qawama and mahr could both be modified as well. Alimony could be increased and the wife could be given the right to work outside the home without spousal permission. Since many Palestinian women must work outside the home for economic reasons, amending this provision may be seen as following law reform. The wife's custody of the children could also be extended past puberty. The current ability of women to make stipulations in the marriage contract could be more widely known through educating young women about this option.

Instead of engaging in tinkering or following law reform, the Palestinians might consider adopting leading law reform techniques by proposing the implementation of international human rights (huquq al-insan) norms. This could be done by an independent State of Palestine signing the relevant agreements and undertaking methods to make either the treaties self-executing or to pass domestic legislation to execute them. Even if there is no independent state capable of signing treaties, an interim government with rule-making authority, could enact the substance of these norms under domestic law.

While there are those who support the full endorsement of international human rights standards, there are many who find these principles antithetical to Islam.(78) There are also arguments by cultural relativists that international human rights are western in nature, and not suitable for those in the developing world.(79) The cultural imperialism argument can be countered by noting that cannibalism and slavery were once hallowed traditions in certain cultures, and no one attempts to justify them today.(80) Despite opposition from cultural relativists, Professor Abdullah Al-Na'im of Sudan states that the Muslim world must undertake the struggle to reconcile Islam with modern human rights standards.(81)

Although there are twenty-two international documents related to the status of women,(82) the Women's Convention (Convention on the Elimination of All Forms of Discrimination Against Women) contains the most extensive provisions.(83) Article One of the Women's Convention defines discrimination as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status on a basis of equality of men and women, of human rights and fundamental freedom in the political, economic, social, cultural, civil, or any other field.(84)

This document is critically important because it covers the private sphere where a large amount of discrimination takes place, i.e. the "areas in which the majority of the world's women live out their days."(85) The Convention contains fifteen articles detailing the fields where states must take "appropriate measures," including: education; health care; nationality; cultural; familial and personal; legal and political activities; employment; recreation; and mortgages and other forms of credit. Affirmative action is permitted, but "shall be discontinued when the objectives of equality of opportunity and treatment have been achieved."(86) Palestinian decision-makers should consider adoption of some of these provisions, including those affecting the private sphere.

One of the major problems with all the international documents is that although a majority of nations have ratified the various covenants protecting the rights of women, inequality nevertheless persists.(87) The conflicts between the status of women under religion and custom, and their status under these documents seem to be the major cause of many reservations to the various conventions.(88) Some of these reservations, in essence hinder the effectiveness and purpose of the documents. For example, Egypt ratified the Women's Convention, but made a substantive reservation "concerning the equality of men and women in all matters relating to marriage and the family," thus purporting to ratify "without prejudice to the Islamic Sharia's provisions?(89) Palestinians must examine the experience that the rest of the world has had with the Convention. Following the Egyptian approach turns the document into an exercise in mere tinkering, since the major areas of discrimination in the private spheres would be left untouched. Conversely, the acceptance of just such a reservation on religious grounds might increase support from traditionalist sectors.

Palestinians should balance the interference with religious norms against the realization of equality, and come down on the side of equality, a self-professed goal of the national movement. They can make recommendations for changing social and cultural patterns through education and government incentives, coupled with tinkering, following and leading law reform of the kind envisioned by the international human rights agreements. While this may not mean instant adoption of all those norms immediately upon gaining autonomy or independence, it must include a commitment to a progressive long-term reform which ensures equality for the populace. Both men and women have suffered from a denial of rights under the occupation. Both men and women deserve to participate in a new society on a more equal footing.

But the Palestinians must be careful because while one can always argue that the moral force of international agreements signed by a majority of the world is powerful, the reality is that "without a translation of the rhetoric of human rights into enforceable legal rules the individual is in a very weak position in respect of a very powerful state."(90) At one extreme, women may find themselves confronted by a backlash from traditionalist forces that causes them personal danger, in the form of harassment or stoning as "loose women." This actually happened in the Palestinian hijab campaign which is described below.(91) Alternatively, women may find that progressive rights are not backed up by government enforcement, thereby negating the substantive value that the provision of the rights was supposed to achieve.

In selecting which internationally recognized rights to adopt, Palestinians must use care in evaluating the proposed rights schemes. Because of the increasing international acceptance of human rights norms, opponents of such norms use sophisticated rationales often cloaked in the language of human rights.(92) As an example of a nuanced attempt by opponents of implementation of international norms, consider the following. The Universal Declaration of Human Rights states, "Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and found a family."(93) The 1981 Universal Islamic Declaration of Human Rights, which was prepared under the auspices of the private organization known as the Muslim World League, which represents the interests of conservative Muslims,(94) contains a similar provision. "Every person is entitled to marry, to found a family, and to bring up children in conformity with his religion, tradition and culture."(95) The language concerning conformity with religion actually means that sharia still governs for a Muslim. Sharia restricts Muslim women from marrying non-Muslim men. Thus, the unlimited restriction of the Universal Declaration has been subtly limited by using language that may appear innocuous to the unknowledgable, but maintains the discriminatory strictures of Islamic law.

It is also important to note that some alleged proponents of reform, who actually oppose change, may write extensively about the equality of all Muslims. But a careful reading of their proposals indicates that they are not referring to equality between men and women. Professor Mayer analogizes this to the western notion of not considering equality as inclusive of children's rights. For example, young people do not have the right to vote or marry. She goes further and provides the example of the American founding fathers of the Constitution whose notion of political and social equality did not include women, blacks, or Indians.(96) The broad sweeping leading law reform that the U.S. Constitution represented was seen at the time as having no relevance to the status of these particular groups. Thus, it is critical for Palestinian leaders to differentiate between proposals calling for true equality between the sexes and those that are merely calling for equal treatment of all men among themselves and equal treatment of all women among themselves. They should not enact leading law reforms that appear to be valid for everyone but all actually intended to have no applicability to half the population.

Another problem facing the Palestinians in the adoption of international human rights norms is that of enforcement. They must institute domestic enforcement mechanisms that will be held accountable to the new government's policies. Reliance on Islamic qadis or sharia courts that may feel the reforms are anti-Islamic, will not work. Instead, executive branch officials who are politically appointed by the new decision makers could create new administrative institutions to enforce the implementation of rights. This could be backed by stiff penalties and prison time indicating the serious nature of the offenses. An Ombud office could be established to investigate government failures to enforce rights and hear individual human rights complaints.(97) Appointment of additional secular or religious judges could help ensure that the pre-existing institutions are more amenable to implementing new government policy as well. This could be coupled with national educational campaigns in the schools, work-places, and other parts of civil society to gain additional support and societal change. The ultimate aim would be for the leading law reforms of today to come to be regarded as following reforms that were ultimately only in need of tinkering.

C. Intifada

This subpart discusses a third major way that custom and religion can be modified to improve the legal status of women -- by building upon societal changes introduced by the six year old Intifada and incorporating them into codified and uncodified post-Intifada custom or religious practice. Custom and religion have been greatly influenced by the Intifada.(98) For example, women's participation in the Intifada has been "comprehensive, direct and active."(99) They were encouraged by the underground UNLU to become involved in executive functions of the newly formed popular committees. Representatives of the women's committees actively intervene in domestic disputes if a woman requests it. Their interventions have met with mixed success.(100) Women's committees have also started to give lectures about personal status and divorce law.(101) Various ad hoc groups of women have also been attempting to draft a family status law to replace the traditional laws that govern divorce, inheritance, and other matters.(102) Two of the main women's groups have demanded a progressive family status code.(103) The three socialist women's committees (excluding Fatah) have made the abolition of the sharia courts and the institution of civil marriage part of their nominal agenda.(104) Since Fatah may be representative of the vast majority of Palestinians, its failure to endorse these reforms may be ominous. It may signal a willingness to adhere to customary and religious norms for the sake of national development at the expense of women's rights.

Women's groups have also tried to regulate or eliminate the mahr. Since many men have been unable to work in a consistent fashion during the Intifada, they have been unable to raise the large sums customarily required.(105) Breaking with tradition, some committees have encouraged the nonpayment of mahr on the grounds that paying for women is a burdensome custom which is incompatible with the goals of the Intifada in improving the status of women.(106) Individual women and couples have refused as well,(107) or lowered the amount paid. It should be noted that even before the Intifada, there were communities where the mahr had been almost abandoned. This occurred in some areas near refugee camps where the family did not have the capital. It also occurred where work was available for both sexes, so women did not need the protection of large marriage gifts.(108)

Also among the efforts to mobilize women have been a December 1990 conference by the Bisan Center in Jerusalem entitled "The Intifada and Some Women's Social Issues." It was attended by nearly 500 women who discussed such critical issues as the hijab campaign, marital age reduction, and comparative family law.(109) A number of women's resource centers also have been formed in Ramallah, Nablus, and Gaza. Their purpose is to disseminate materials and educate women from different backgrounds about their legal rights, in order to prepare them to participate in a future Palestinian entity.(110)

Despite the changes that have occurred, the Intifada has not been successful in eradicating customary and religious norms about a woman's role in society. After the initial upsurge in political activity described above, women's position has basically stagnated or reversed.(111) An important illustration of this retrenchment was the hijab campaign launched by Hamas in 1989 which resulted in the imposition of headscarves on all women in Gaza.(112) This is consistent with the use of custom and religion as a bolstering force against the cultural and psychological ravages of occupation. Despite the warning by the UNLU to permit women flexibility in their dress or face sanctions, no action was taken to enforce the provisions in the appendix of Bayan no. 43 condemning attacks on women. Thus, in February 1990, fundamentalists felt unconstrained to renew the hijab campaign, and attempted to impose the jilbaab (full length dress) as well.(113) Hamas activists have continued to patrol the Gaza streets looking for inappropriately attired women and dousing them with vegetable dye as punishment.(114) In March 1993, informants told me that women had been attacked with acid. Many secular women told me that they dared not leave the house without the headscarf.

The UNLU and other nationalists have been clearly unable or perhaps unwilling to counter the growing fundamentalist tendency.(115) Feminists have tried to justify the inability of the UNLU to defeat the fundamentalist forces by stressing the ongoing theme of not wanting to create internal differences while fighting the occupation.(116) Once again, however, it is the rights of women which are sacrificed to accommodate nationalist aims, including the continued existence of restrictive customary and religious norms.

PLO leadership outside of the Occupied Territories has also issued documents that can be interpreted as restrictive of women's rights. The Palestinian Declaration of Independence states that "... governance will be based on principles of social justice, equality, and nondiscrimination in public rights on grounds of race, religion, color or sex."(117) The problem is that the call for equality is limited to the public sphere, maintaining the dichotomy between private and public realms that the Women's Convention seeks to destroy. Change in personal status matters most impacted by religion and custom is apparently not contemplated.

Thus, the women's movement continues to have the "inability to bring a balance between the national conflict needs on the one hand, and needs of women stemming from their class oppression and their oppression as women by a patriarchal system of social organization on the other."(118) While some approach the subordination of women from a feminist perspective, others link women's oppression to the "collective weaknesses that impede liberation."(119) There are some women, like Palestinian negotiating team member Zahira Kamal, a prominent activist aligned with the DFLP, who do not adopt the word feminism, but say, "When we are talking about feminism, it is the right of women to work and to get an education."(120) While the feminist discourse might alienate many male and female traditionalisis who would view it as western cultural imperialism, they can relate to the very concrete need to obtain an education in order to obtain a job, whether male or female. There are also many women who do not want to suffer the fate of the Algerian women who were restricted again to the private sphere after the Algerian struggle for independence in the 1950s.(121)

With respect to the future role of Palestinian women, President Yasser Arafat has stated they will not suffer the fate of the Algerian women because Palestinian women have a higher rate of education which enables them to obtain professional positions.(122) He noted that there were 37 female members in the 301 member Palestine National Council, a percentage that compares favorably to developed nations.(123) While admirable in the Middle Eastern context, this statement does not address the private/public dichotomy in the Declaration of Independence. While some Palestinian women may certainly want to participate in the public spheres, some will certainly also be concerned with the private sphere where they spend the majority of their lives.

PART IV. CONCLUSION

This article has confronted the question of how Palestinian custom and Islamic religious practices, working separately and in conjunction, can be modified to advance the legal status of women, a professed goal of the Palestinian national movement. Deeply held customary and religious norms endorse the differential treatment of women. Although there are many possible ways to enact progressive reforms, this article analyzed three interrelated options. Reinterpretation of Islamic doctrine has taken place throughout the Islamic world, as proposed by nation states and Islamic and feminist scholars. Usually this approach involves tinkering or following law reform, leaving intact the basic patriarchal structure of the law. Palestinians can engage in reinterpretation based upon the Hanafi school of jurisprudence. These approaches are useful because where religious tradition and custom coincide in their support for a given social order, it is extremely difficult to mount successful confrontations to entrenched patterns of discrimination. Although leading law reform can be instituted, societal perceptions must change before actual equality for women can be achieved.

A second approach to improving the status of women is through the implementation of codes that may be based partially on customary and religious norms, and partially or totally based on international human rights conventions. The critical problem here with the adoption of the leading law reform technique is that it is difficult to ensure de facto obedience from the existing legal actors who may oppose reform. The constitutions of most Islamic countries have clauses forbidding discrimination on the basis of gender, and many have signed international human rights treaties guaranteeing the same. But complying with these norms in the face of traditionalist challenges is the dilemma facing most countries. The state must play a major role in ensuring the enforcement of equality. The Palestinians could publish a new family code, at minimum codifying the reinterpretation of Hanafi jurisprudence as found in the Jordanian Personal Status Code. This would follow the model of other secular Muslim states. Ideally, they could adopt codes based on the international human rights principles found in various documents described herein.

The third approach to ameliorating women's legal status is a Palestinian-centric emphasis on following the social reforms brought about by the Intifada. Ultimately, legal change will only be successful if societal change is taking place as well. Since this is the Palestinian case to a certain degree, there is some cause for optimism about the success of proposed reforms. This optimism must be tempered by the fact that traditionalist forces will likely oppose most of the changes as inconsistent with Islamic practice and custom. Only time will tell if the Palestinian self-governing entity or future independent state will be in the forefront of the Muslim world in adopting and enforcing the international human rights norms that have so long been denied to both men and women in the Occupied Territories.

NOTES

1. For a discussion of the roles of custom and religion generally in the Palestinian community, see Adrien Katherine Wing, Legal Decisionmaking During the Palestinian Intifada: Embryonic Self Rule, 18 Yale J. Int'l L. 95 (1993).

2. Aharon Layish, Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of the Sharia Courts in Israel 328 (1975).

3. Julie Peteet, Socio-Political Integration and Conflict Resolution in the Palestinian Camps in Lebanon, J. Palestine Stud., Wint. 1987, at 29, 40 (noting that custom and religion are often confused in the Arab world).

4. Mohammad Hashim Kamali, Principles of Islamic Jurisprudence 285 (1991).

5. See George Emile Bisharat, Palestinian Lawyers and Israeli Rule 191 n.35 (1989).

6. Nawal el Saadawi, The Hidden Face of Eve: Women in the Arab World xiv (1980).

7. Bisharat, supra note 5, at 37.

8. Id.

9. Ingela Bendt & James Downing, We Shall Return: Women of Palestine (1980).

10. Bisharat, supra note 5, at 40.

11. Id. at 191 n. 32.

12. See, e.g. Saadawi, supra note 6, at 4.

13. Id. at ix.

14. Paul Cossali & Clive Robson, Stateless in Gaza 38 (1986).

15. Saadawi, supra note 6, at 2.

16. Id.

17. Cossali & Robson, supra note 14, at 35.

18. Abdullahi An-Naim, The Rights of Women and International Law in the Muslim Context, 9 Whittier L. Rev. 491, 495 (1987).

19. Bisharat, supra note 5, at 20.

20. For an analysis of how these laws have been altered by the Israeli occupation, see Raja Shehadeh, Occupiers Law (1988).

21. Jordanian Law of Personal Status, Temporary Law no. 61/1976, Official Gazette no. 2668 of 1 December 1976, which raplaced the 1951 Code. One of the exceptions to the 1988 renunciation of all legal claims to the West Bank by Jordan's King Hussein was the sharia courts, so the judges retain their Jordanian appointments, salaries, and supervision. For a discussion of the contents of the 1976 law, see Lynn Welchman, The Development of Islamic Family Law in the Legal System of Jordan, 37 Int'l & Comp. L. Q. 868 (1988)[hereinafter Islamic Family Law]. A new draft is under consideration in Jordan and its provisions are described by Welchman, supra at 872.

22. Jordanian Personal Status Law, supra note 21, art. 5.

23. Id. art. 13.

24. Id. arts. 9-13.

25. Id. art. 33.

26. Id. art 16.

27. Id. art 44. Mahr is mentioned in the Qur'anic verse 4:4.

28. Id. art. 63. For a description of how the father of the bride kept the mahr, see Kitty Warnock, Land before Honour: Palestinian Women in the Occupied Territories 30 (1990).

29. Jordanian Personal Status Law, supra note 21, arts. 36, 66, 67.

30. Id. art. 28.

31. Id. art. 39.

32. Phillippa Strum, The Women are Marching: The Second Sex and the Palestinian Revolution 234 (1992).

33. Jordanian Personal Status Law, supra note 21, art. 37.

34. Id. arts. 68-69.

35. Id. art. 85.

36. Id. art. 97.

37. Id. art. 135.

38. Id. art. 94.

39. Id. art. 98.

40. Id. art. 36.

41. Id.

42. Id. art. 134. The Jordanian courts have supplemented this provision by ruling that any talaq pronounced without the consent of the wife is arbitrary, with the burden of proof then falling on the husband to establish the existence of a sharia reason for the divorce to defeat his wife's claim for compensation. Welchman, Islamic Family Law, supra note 21, at 881.

43. Jordanian Personal Status Law, supra note 21, arts. 113-15.

44. Id. art. 116.

45. Id. art. 120.

46. Id. art. 123.

47. Id. art. 126.

48. Id. art. 127.

49. Id. art. 132.

50. Id. arts. 115-16.

51. Id. art. 69.

52. Welchman, Islamic Family Law, supra note 21, at 875.

53. Jordanian Personal Status Law, supra note 21, art. 19. Lynn Welchman researched 8,500 marriage contracts registered in the sharia courts of the West Bank over the past twenty years and discovered only 1.5% contained any stipulations. Welchman, Islamic Family Law, supra note 21, at 874 n.10.

54. Jordanian Personal Status Law, supra note 21, art. 162.

55. Id. art. 156.

56. John Barton, James Gibbs, Victor Li, & John Merryman, Law in Radically Different Cultures 8 (1983).

57. Id.

58. The adoption of modern constitutions and civil codes, formation of law reform commissions, and "law making" judicial activity are all examples of leading law reform. Id. at 9.

59. An-Naim, supra note 18, at 514.

60. Ann Elizabeth Mayer, Law and Religion in the Muslim Middle East, 35 Am. J. Comp. L. 138, 184 (1987).

61. See Tunisian Code of Personal Status of 1956; Iranian Family Protection Act of 1967 as amended in 1975 (abrogated in 1979 by Khomeini government); Pakistan Mustira Family Laws Ordinance of 1961, discussed in Mayer, supra note 60, at 141-42.

62. Id. at 178. Examples of the new critics of inequality are Women and Islam (al-Hibri ed., 1982); Fatima Mernissi, Beyond the Veil: Male and Female Dynamic in Modern Muslim Society (1987); Fatima Mernissi, Woman and Islam (1991); Fatima Mernissi, The Veil and the Male Elite (1991).

63. An-Naim, supra note 18, at 501.

64. Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics 113 (1991).

65. An-Naim, supra note 18, at 516.

66. See Elizabeth H. White, Legal Reform as an Indicator of Women's Status in Muslim Nations 60 in Women in the Muslim World (Lois Beck & Nikki Keddie eds., 1978) (containing table listing reforms affecting women's status).

67. Id. at 58. For more on Tunisia, see Eschel M. Rhoodie, Discrimination Against Women: A Global Survey 363, 369 (1989).

68. White, supra note 66, at 59.

69. For exceptions, see Mahmoud Mohamed Taha, The Second Message of Islam (A. An-Naim trans. 1987); An-Naim, supra note 18, at 497.

70. Abdullahi An-Na'im, Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives: A Preliminary Inquiry 13, 47 (1990).

71. Abdullahi An-Na'im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law 91 (1990).

72. John L. Esposito, Women in Muslim Family Law 129 (1982).

73. Noel Coulson & Doreen Hinchcliffe, Women and Law Reform in Contemporary Islam, in Beck, supra note 66, at 37, 39.

74. Id. at 40. Tunisia, Israel, Turkey and the former Soviet Union prohibited polygamy altogether. Id.

75. Id. at 43. Most countries have restricted the husband's right to unilaterally terminate the marriage. Id.

76. Id. at 45.

77. Reforms in this area have been less far reaching. Tunisia, Somalia, Sudan, Egypt, and Iraq have made some changes. Id. at 47. A table of Islamic reforms in the various countries can be found in Id. at 49-50.

78. Mayer, Islam and Human Rights, supra note 64, at 29.

79. These arguments are discussed in the context of female circumcision by Alison T. Slack, Female Circumcision: A Critical Appraisal, 10 Hum. Rts. Q. 437 (1988). Also see Jack Donnelly, Cultural Relativism and Universal Human Rights, 6 Hum. Rts. Q. 400 (1984).

80. Riane Eisler, Toward an Integrated Theory of Action, 9 Hum. Rts. Q. 296 (1987).

81. An-Na'im, supra note 70, at 51.

82. See Natalie K. Hevener, An Analysis of Gender Based Treaty Law: Contemporary Developments in Historical Perspective, 8 Hum. Rts. Q. 70 (1986). The Islamic nations have some mechanisms. In September 1968, the Arab League established the Permanent Arab Regional Commission on Human Rights, which is supposed to advise the League on the means by which states could protect human rights. See Council of the Arab League, Res. 2443/48, Sept. 3, 1968. It has yet to generate an Arab Convention on Human Rights, and has done more in the realm of promoting rather than protecting human rights. Burns H. Weston, Robin Ann Lukes, & Kelly M. Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, 20 Vand. J. Transnat'l L. 585 (1987). There is, however, a draft Charter on Human and Peoples Rights in the Arab World. Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 Mich. J. Int'l L. 517, 537 n.67 (1992). It is a product of the Islamic Conference, to which all Muslim countries belong. The Charter does endorse human fights as compatible with Islam.

83. Other major protections of rights are to be found in: the United Nations Charter; the Universal Declaration of Human Rights, U.N. Doc. A/810, G.A. Res. 217 (III) at 71 (1948); the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention), G.A. Res. 34/180, 34 U.N. GAOR Supp. (no. 710.46) at 193, U.N. Doc. A/34/46 (1979) (entered into force Sept. 3, 1981); the International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 53-56, U.N. Doc. A/6316 (1967) (entered into force Mar. 23, 1976); and the International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (no. 16) at 49-50, U.N. Doc. A/6316 (1967) (entered into force Jan. 3, 1976).

84. Women's Convention, supra note 83.

85. Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in Human Rights: From Rhetoric to Reality 80, 82 (Tom Campbell et al. eds., 1986).

86. Women's Convention, supra note 83, art. 4. Special measures protecting pregnancy are allowed. As broad as the Convention is, it does not cover abortion, pornography, domestic violence or marital rape.

87. Albert P. Blaustein, Foreword in Rhoodie, supra note 67, at xi.

88. See A Report on the Ninth Session of the Committee on the Elimination of Discrimination Against Women 10 (International Women's Rights Action Watch CEDAW #9, May 1990).

89. Multilateral Treaties Deposited with the Secretary General: Status as of 31 December 1986, at 162, U.N. Doc. ST/LEG/SER.E/3 (1985).

90. Burrows, supra note 85, at 91.

91. See part C below.

92. Mayer, Islam and Human Rights, supra note 64, at 214.

93. Universal Declaration of Human Rights, supra note 83, art. 16(1).

94. For a thorough discussion of this document, see Mayer, Islam and Human Rights, supra note 64.

95. Article 19a, discussed in Id. at 120.

96. Id. at 136. See Derrick Bell, Race, Racism and American Law 2 (1992).

97. For a discussion of the Ombud office in the new nation of Namibia and as proposed for South Africa, see Adrien Katherine Wing, Communitarianism vs. Individualism: Constitutionalism in Namibia and South Africa, 11 Wise. Int'l L. J. 295 (1993).

98. Throughout the Intifada, the Palestinian Press has featured articles on the return to customary law. F. Robert Hunter, The Palestinian Uprising: A War by Other Means 3 (1991).

99. Rita Giacaman, Palestinian Women in the Uprising, 2 J. Refugee Stud. 139, 142 (1989).

100. Joost Hiltermann, Trade Unions and Women's Committees, Sustaining Movement, Creating Space, Middle E. Rep. May-Aug. 1990, at 32-36. Hiltermann does not detail examples of success or failure.

101. Joost Hiltermann, The Women's Movement During the Intifada, J. Palestine Stud., Spr. 1991, at 56.

102. Hiltermann, supra note 100, at 32-36. During my March 1993 trip to the region, several women indicated that such groups had sporadically met after the Gulf War.

103. Salim Tamari, Left in Limbo: Leninist Heritage and Islamist Challenge, Middle East Rep. Nov.-Dec. 1992, at 16, 21.

104. Strum, supra note 32, at 144.

105. Marwan Darweish, The Intifada: Social Change, Race & Class, Oct.-Dec. 1989, at 47-56.

106. Warnock, supra note 28, at 63.

107. Strum, supra note 32, at 151.

108. Warnock, supra note 28, at 61.

109. Bisan Centre, The Intifada and Some Women's Social Issues (1991). Hijab Campaign is discussed below.

110. Maria Holt, Half the People: Women's History and the Palestinian Intifada 14 (1992).

111. Joost Hiltermann, Behind the Intifada: Labor and the Women's Movement in the Occupied Territories 193 (1991). See generally Strum, supra note 32.

112. Rema Hammami, Women, the Hijab, and the Intifada, Middle E. Rep., May-Aug. 1990, at 25, 26.

113. Id. at 28.

114. Sara Roy, The Political Economy of Despair: Changing Political Attitudes Among Gaza Refugees, J. Palestine Stud., Autumn 1989, at 58, 65.

115. Hiltermann, supra note 111, at 207.

116. Interview with woman activist, in Ramallah (June 5, 1990), in Hiltermann, supra note 111, at 204.

117. Proclamation of the Independent Palestinian State, issued by 19th session of Palestine National Council, Algiers, November 15, 1988, reprinted in 27 I. L. M. 1668 (1988).

118. Giacaman, supra note 99, at 141.

119. Rosemary Sayigh, Encounters with Palestinian Women under Occupation in Occupation: Israel over Palestine 269, 282 (Naseer Aruri ed., 1984).

120. Quoted in John Wallach & Janet Wallach, The New Palestinians: The Emerging Generation of Leaden 106 (1992).

121. Id. at 118.

122. Elise G. Young, Keepers of the History 49 (1992).

123. Id.

Adrien Katherine Wing is Professor of Law at University of Iowa's College of Law.