Follow UNISPAL Twitter RSS
Report of the Special Rapporteur on violence against women, its causes and consequences, on her mission to the Occupied Palestinian Territory/State of Palestine*
Note by the Secretariat
This report contains the findings and recommendations of the Special Rapporteur on violence against women, its causes and consequences, on her visit to the Occupied Palestinian Territory/State of Palestine from 17 to 22 September 2016. The mandate holder examines the gaps and challenges in fulfilling the State's obligation to eliminate violence against women, its causes and consequences and recommends measures for preventing and combating violence against women and ensuring the enjoyment of human rights by women. The mandate holder will also present a separate reportl on her official visit to Israel in which she also addresses the gendered impacts of the protracted conflict and prolonged occupation on violence against women.
* The present document was submitted after the deadline in order to reflect the most recent developments.
** Circulated in the language of submission only.
1. At the invitation of the Government of the State of Palestine, the Special Rapporteur on violence against women, its causes and consequences, Ms. Dubravka Simonović, visited the Occupied Palestinian Territory /State of Palestine from 17 to 22 September 2016. She submits two separate reports but with cross-referencing particularly relating to the general context section.
2. On 29 November 2012, the UN General Assembly adopted resolution 67/19, through which it accorded to Palestine non-member observer State status in the United Nations. In order to reflect such development, the SRVAW is referring in this report to the OPT/State of Palestine but without precluding any other use of terminology by the State of Palestine or the State of Israel and others.
3. The Special Rapporteur expresses her sincere gratitude to the Government of the State of Palestine for its full cooperation. During her visit, the mandate holder visited Ramallah, Bethlehem, Hebron, Jericho, East Jerusalem and Gaza, where she met with the Ministry of Foreign Affairs, the Ministry of Justice, the Chief of Justice of the High Judicial Council and Chief of the Sharia Court, as well as judges of the Sharia Court, the Attorney General, the Minister and Deputy Minister of Women's Affairs, The Ministry of Social Development, the National Committee on Combatting violence, the Deputy Minister of Health and the Minister of Education, and other representatives of these entities. She also met with members of the Palestinian Legislative Council (PLC) in Ramallah, including the Chair of its Human Rights Committee, members of the PLC in Gaza, the Independent Commission for Human Rights and held consultations with civil society organisations, Bedouin women, internally displaced women, and representatives of UN agencies. She visited four shelters/safe houses, a refugee camp, a Bedouin community, a school, a health clinic, a gender-based violence safe space and provided opening remarks in an International Seminar on Gender Based Violence in the Humanitarian Context of the Gaza Strip, organized by UN Women.
4. In particular, the Special Rapporteur would like to thank the women and girls survivors of violence, who shared their experiences with her throughout the visit, placing their trust and some of their hopes in her hands.
5. The mandate holder expresses her gratitude to OHCHR oPt and its Gaza sub-office, UN Women and UNRWA, as well as other UN agencies and other interlocutors involved in the organization of her visit.
6. She looks forward to a fruitful dialogue with the Government and other stakeholders on the implementation of the action-oriented recommendations included in the present report.
II. General context
7. This visit took place in a general context of protracted conflict and prolonged Israeli occupation punctuated by frequent incidents of violence and the absence of any prospect of peace that creates a growing despair and hopelessness among the population. This complicated de jure and de facto situation in Israel and the OPT /State of Palestine provides the backdrop for assessing the different forms of violence against women, its causes and consequences in public and private life. This context requires the joint application of international human rights law and international humanitarian law to all persons under States' jurisdiction or territory under their effective control. International human rights law with centrality of the CEDAW Convention provides a broad framework for eliminating violence against women and its causes based on inequalities and discrimination against women in war, peace and in conflict situations while humanitarian law provides a specific framework to address some specific conflict-related forms of violence against women.
8. The CEDAW Committee has consistently held the view that the Convention as well as humanitarian law are applicable to all persons under Israel's jurisdiction or effective control2 in line with the jurisprudence of the ICJ3 and position of other treaty bodies like CERD,4 CESCR5 and the Human Rights Committee6. The Rapporteur shares these positions.
9. The subsequent GA resolution 67/19 recognizing to Palestine the status of Non-member Observer State in the United Nations and Palestine's accession to a number of international human rights instruments have not altered Israel's obligations under human rights law and humanitarian law vis-à-vis the territory under its effective control and people under its jurisdiction.
10. Following her 2004 visit only to the OPT, the former Special Rapporteur on violence against women highlighted a number of issues of concerns related to violence against women that remains unaddressed and unresolved7. Additionally various UN bodies have expressed concern about the human rights, humanitarian and security issues that occupation brings, including with regard to the situation of women.
11. While recognizing the imperatives related to security and stability in the region, the mandate holder highlights the clear linkage between the prolonged occupation and violence against women, and she notes, like her predecessor, that the occupation does not exonerate the State of Palestine from its due human rights obligation to prevent, investigate, punish and provide remedies for acts of gender-based violence in the areas and for persons under its jurisdiction or effective control. The de facto authorities in Gaza also bear human rights responsibilities, given their exercise of government-like functions and territorial control.
12. Following the 1995 Oslo II agreement, the West Bank was divided into Areas A, B and C, each of them having a different status of governance. In Area A, representing 18% of the territory of the West Bank, the State of Palestine exercise control over security and civil matters. Area B is administered by the PA, which have the control over civil matters, while the Israeli authorities jointly with the PA have security control. In Area C, which constitutes 62 percent of the West Bank, the Israeli authorities have full control over security, planning and construction.8. Within Area C, Palestinians have limited access to water, electricity, education, and other state services.
13. The city of Hebron is divided into two areas: H1, under control of the PA, and H2, representing 20% of Hebron, under Israeli control, that has held all authority and responsibilities for internal security and public order, following the 1997 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip?
14. In East Jerusaleml10, Israeli law has been applied and provides the status of “permanent residents” of Israel to Palestinian residents but treats them as immigrants in the occupied territory11. While providing them with some more freedom of movement in comparison to other Palestinians, it discriminate them in comparison to Jewish willing to immigrate to Israel. The blockade of the Gaza Strip has led to a critical socioeconomic and humanitarian situation for Palestinians residing there, particularly women. There is limited access to water, housing, land and property, especially for widowed women, as well as to employment opportunities, higher education and health care.12
15. The situation is further complicated at the internal level, with a political deadlock, characterized by a lack of legislative elections for the past 10 years and a divide between the Government of the State of Palestine and the Gaza de facto authority since the last legislative elections.
16. Since September and October 2015, the security situation in the Occupied Palestinian Territory and Israel has continued deteriorating due to an increase of violence and clashes between Palestinians and Israelis until the time of the visit.
17. Those complicated and conflicting political and legal regimes are providing equally or even more complicated and conflicting legal context for women victims of VAW and complex due diligence responsibility of different authorities that have shared jurisdiction over security and other issues to prevent VAW, provide services for victims and punish perpetrators.
18. It can be said that in this particular context of Israeli Palestinian conflict that violence against women is a phenomenon that occurs across the divide, in both contexts. The Rapporteur will look at violence against women against this backdrop and with the conviction that combating and preventing VAW will ultimately contribute to each society's growth, bridge divided communities and contribute to peace by removing obstacles to full participation women in this process.
III. Incorporation of the international framework on violence against women
19. On 29 November 2012, the General Assembly adopted resolution 67/19, in which Palestine acquired the status of Non-member Observer State in the United Nations. Since then, the State of Palestine acceded in April 2014 to some of the key human rights instruments, including the CEDAW Convention, the ICCPR, the ICERD; the CAT; the CRC and its first Optional Protocol and the CRPD. The Rapporteur notes that these instrument were acceded to without any reservations. She notes as well, among others, Palestine's accession to the UN Convention against Transnational Organized Crime, the Rome Statute of the ICC and the Geneva Conventions and the Additional Protocol (III) thereto.
20. The mandate holder welcomes Palestine's accession to all above mentioned legal instruments and in particular to the CEDAW Convention through which Palestine has assumed legal obligations to eliminate all forms of discrimination against women, including violence, and to ensure equality between men and women and women's human rights protection. She is confident that such accession and reporting to its monitoring body will play an important role in the ongoing harmonization of the State's current outdated legislative framework and bring it in line with international norms and standards. She welcomes the submission on 8th March of Palestine's overdue first report under the CEDAW Convention. She also welcomes the national consultations which had taken place with CSOs prior to its submission.
21. She also welcomes the standing invitation that was extended to all Special Procedures.
22. The Rapporteur notes with concern a lack of implementation of the 2011 CEDAW concluding observations13, many of the concerns remaining valid during the visit and followed up in the mandates recommendations.14 Similarly, she notes with concern the lack of implementation of other treaty bodies' concluding observations relevant for the context of this report, including on the practice of torture and ill-treatment of Palestinian children arrested15, the legality and use of the “defence of necessity” as a justification of torture; lack of effective accountability and protection from Israeli's authorities from violence perpetrated by Israeli settlers;16 as well as the unequal treatment of Bedouin women and girls,17 among others.
IV. Manifestations of violence against women, its causes and consequences
23. The Special Rapporteur noted that violence against women occurs both in private and public spheres, women suffering multiple sources of discrimination and violence: they suffer the violence of the Israeli occupation, whether directly or indirectly but they also suffer from a system of violence emanating from the tradition and culture, with embedded patriarchal social norms and multiple outdated legal framework. She however notes that there are ongoing efforts related to revisions of numerous laws relevant to combat and prevent violence against women that is now less of a taboo that it was at the time of the visit of her predecessor18.
Femicide or gender related killings of women, including violence in the name of “honour”
24. The Rapporteur noted that many forms of gender based violence are linked to “honour”, including femicides or gender related killings of women, forced marriage, imprisonment, rape, incest, domestic violence, and suicide. She further notes that these patriarchal patterns are reflected also in the legislation, which allows protection of “honour” for such crimes and provides for “pardoning excuses”, according to which too often perpetrators get a reduced sentence or do not even get convicted.19 The Rapporteur however notes the recent important legislative changes of the Penal code that repealed some of these provisions20.
25. The phenomenon of femicide exists and threatens Palestinian women's right to life. The Rappporteur notes that no government agency currently collects figures on femicides but that several Palestinian women's rights groups reported being regularly confronted with cases of “honour” crimes and killing of women and girls perpetrated by family members. For example, the Women's Centre for Legal Aid and Counselling (WCLAC), which collect such data, observed 27 cases of the killing of women and girls in 2014, and 15 cases in 2015. From the beginning of 2016 until mid-August, 18 cases of femicides were documented by a CS0.21
26. Family honour plays a fundamental role in Palestinian society. Crimes in the name of “honour” are defined as violent crimes committed against women for “tarnishing the name and the honour of the family”22 In the Palestinian context, they constitute a manifestation of culturally inherited values of inequality that impose upon women socially expected behaviours deriving from patriarchal norms and standards.23 Women's transgressions of these social norms are considered a violation of the honour of the family and men, and legitimize violence against women as a disciplinary measure to maintain or restore the family honour.24 Women are therefore discouraged from reporting abuses by social norms and family members who fear for their reputation.25 Additionally, in some part of the OPT under Israel's jurisdiction, women face difficulties to report to the Israel police which constitutes an additional obstacle.26
27. The Rapporteur received several testimonies by Palestinian women after finding safety and trust in protection programs and shelters, such as the Mehwar Centre which she visited. They shared their experiences of Palestinian women who are punished for crimes they are the victims of, in a chain of sexual violence, fear, and misguided persecution.27
28. Despite the lack of official statistics, the number of women killed under the pretext of protecting the so-called “family honour” had dramatically increased within the last years. The Rapporteur wishes to highlight the importance of collecting reliable data on femicides or gender related killing of women including “honour” crimes as a mandatory step to address violence against women.
29. Domestic violence is not prohibited by law although violence, whether perpetrated against males or females, is illegal and punishable under gender-neutral criminal 1aw28. The Rapporteur was however informed of a draft legislation on domestic violence/protection of the family which had undergone national consultations and was reported by the Government to meet international standards.30
30. The results of the only survey undertaken in the last 20 years by the Palestinian Central Bureau of Statistics (PCBS) on gender based violence in 2011 indicate that Palestinian women suffer from violence emerging from the prevailing patriarchal culture in Palestinian society. The study showed that around 37 per cent of married women had been exposed to at least one form of violence by their husbands; 29.9 per cent in the West Bank in comparison to 51.1 per cent in the Gaza Strip29 whereas less than 1 percent will seek the help of a social worker, a shelter, a civil-society organization, or the police. Of those who do seek help and end up on the doorstep of the police, less than one-third of those cases will go on to court, where again justice is not guaranteed30.
31. The percentage of women who experienced psychological violence at least once from among those women reached 58.6 per cent, while 55.1 per cent had been subjected to economic violence; 54.8 per cent to social violence; 23.5 per cent to physical violence and 11.8 per cent to sexual violence.31
32. Several testimonies the Rapporteur collected highlighted that the economic situation, the level of unemployment and the pressure of the occupation have a greater impact on women's and children's lives, making them more vulnerable to domestic violence, in particular in Gaza, due to the constant pressure felt by the blockade and the recurring cycles of conflict, and the overcrowding that limits their mobility and privacy. It was noted, in particular in relation to the situation in Gaza that the political situation also serves as “mitigating circumstance” that makes violence against women more acceptable,32 while social norms shame women who report abuse to the police.
33. The Rapporteur notes efforts related to establishment of the government-sponsored shelter and support for the NGO run shelters but remains concerned that some of them do not have possibility to provide an overnight stay.
34. The Special Rapporteur also notes that women face discrimination in the areas of inheritance, divorce and custody of the children and that women may not leave situations of violence because of the fear of losing custody of the children. A woman can keep her children until the legal (puberty) age but loses them if she remarries before33. After that age, custody becomes the father's legitimate right. In Gaza, a new decision by Shariaa Justice Council has enabled widows to maintain custody of their children for an open-ended period of time until they remarry which is an important change in interpretation of strict religious law.
Sexual violence, including rape and incest
35. The mandate holder is concerned about the occurrence of sexual violence, as victims of sexual violence are stigmatized in the society. Often, women and girls who report cases of rape or incest are more likely to incur abuse or even murder by family members because it brings shame to the family reputation. She notes with concern the persistence of Article 308 of the Palestinian Penal Code No. 16 of 1961 which exempts a perpetrator of rape, kidnapping and statutory rape from prosecution and punishment if he marries his victim.
36. Marital rape is not criminalized under the current Palestinian legal framework. The Jordanian Penal Code34 in force in the West Bank defines rape as sexual intercourse during duress with a female, and does not specify that this woman can be the perpetrator's wife. In cases of incest, both parties are considered guilty, sometimes even in the case of rape by a family member. When the victim of incest is a minor, the charge is filed by a male family member up to the fourth degree of kinship
37. Existing laws35 also criminalize abortion, even if the pregnancy is the result of incest or rape, which leads families forcing the victim to marry in order to legitimize the pregnancy.
38. The age of marriage is not provided clearly in the law and legal references on this matter are full of discrepancies. The Palestinian Child Law of 2004 decrees that the age of majority is eighteen. The Jordanian Personal Status Law sets the minimum age for marriage at sixteen for males and fifteen for females what is discriminatory. The Egyptian Family Law sets it at eighteen for males and seventeen for females what constitutes also discrimination. However, a judge has the right to allow the marriage of a minor if he or she believes that it is in the best interest of the child.
39. The Rapporteur notes that there are no reliable statistics on child marriage but was informed from reliable sources that approximately 9-10% of marriages happen between spouses who are under the age of 18 years old. There is also an increase pressure for girls to get married where in the context of the occupation, marriage being seen as a coping strategy but also to cover up rape and incest. Such marriages often further cement the cycle of abuses and misdeeds, as marriage absolves a rapist of prosecution for the rape. The Rapporteur highlights that child marriages show greater risk of resulting in violence against women, especially when the age difference between the spouses is large, and notes that the lack of agreed age of marriage undermines young girls' protection from violence.
40. Men are allowed to have multiple wives, even if a man's present wife is opposed to it. The Family Law and Personal Status Law allow women to include conditions in their marriage contract, such as restrictions to polygamy, but in the West Bank this is very rarely respected by judges.36
41. The Rapporteur wishes to recall that CEDAW, in its General Recommendation No. 24, defines polygamy as a harmful practice and that various studies show that a woman who is in a polygamous marriage incurs a higher chance of suffering from violence. Moreover, in its General Recommendation No. 21, CEDAW also stated that “polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited.”
Violence against women in the workplace
42. Women are subject to different forms of violence in the workplace. In 2011, the Palestinian Central Bureau of Statistics conducted a study on gender-based violence in the workplace in partnership with the International Labour Organization (ILO) and the Institute of Women Studies at Birzeit University. Out of the 22.8 per cent of women (186 women) who reported having been being exposed to gender based violence in the workplace, 4.5 per cent claimed to have been suffered unwanted sexual attention at least once, while 3.5 per cent said they had been victims of sexual coercion.37 The survey revealed that the main perpetrators of gender-based violence at work are clients and co-workers and highlighted a regional variation in gender based violence at work. It showed that there are less incidences in the Gaza Strip than in the West Bank.38
Groups of women particularly at risk
43. Among the adult population, the prevalence of women with disabilities is 3.7%. It is not possible to establish exactly how many women with disabilities suffer from acts of violence per year, since women with disabilities are excluded from National Statistics39. Persons with disabilities have a higher risk of incurring violence or abuse, and in the case of women specifically, sexual violence or abuse, due to their impaired ability to report such crimes and their placement within institutions. The Rapporteur was informed of several cases of violence against women with disabilities which clearly show a pattern of impunity for perpetrators due to the lack of adequate legislation protecting women and girls with disabilities. The Rapporteur also notes a lack of access to protection services, including lack of adequate shelters suitable to provide assistance to women with disabilities.
44. Bedouin wome40 are particularly vulnerable to gender based violence, including sexual violence, including in a context of fear of, or forced transfer by Israeli authorities. Since 1997, livestock-dependent Bedouin Palestine refugees, from the Jahalin tribe, living in Area C have been forcibly transferred to al Jabal. Since the construction of the Wall between Abu Dis and Jerusalem, Bedouin women are physically cut off from employment prospects, leaving them with very few options to support themselves financially. Women excluded from the job market are more likely to marry, while women suffering from domestic violence are less likely to report it if it means losing their only source of income.
45. Similarly to Bedouin women, internally displaced women suffer from the same lack of access to the job markets. Palestinian women who were relocated to refugee camps have restricted entry into East Jerusalem to find work due to the Wall between Area A, where the majority of the camp is located and Area C (controlled by Israeli), where some of its periphery is located. The Rapporteur observed that this lack of access leads to higher incidence of gender-based violence in itself, on top of the already established fact that displacement increases the vulnerability and instances of gender-based violence.
46. Women and girls living in Palestine Refugee Camps are exposed to particular forms of violence resulting from their confinement to the household which isolate them and limit their ability to interact in society.
Access to justice
47. Despite the existence of some laws condemning violence, their implementation is challenged by the absence of a formal governmental authority in specific areas of the OPT. In this regard, the occupation is a real obstacle to the State's due diligence obligation to prevent violence against women in areas where it does not have full jurisdiction, because of the fragmentation of the areas under different control41 and the political divide between the Gaza de facto authority and the Government of the State of Palestine.
48. The Special Rapporteur notes that several critical steps have been taken in the justice chain to improve access to justice for victims and fight against impunity of the perpetrators.
49. At the level of the police, since 2008, the Family Protection Units (FPUs) in the Palestinian civilian police force have been established in all districts of the West Bank and work in close cooperation with shelters. These FPUs are specialized and sensitive to gender issues and collaborate with the specialized public prosecution on Protecting Family from Violence established in February 2016 in the Public Prosecution Office in relation to the filing of cases. The Rapporteur notes that the FPUs have increased women's trust in the police but that women still face obstacles to access to the police, including the lack of police stations in women's residential areas and the inability to afford transportation costs42. Another obstacle discouraging women to filing complaints is the lack of confidentiality, FPUs being located within police stations43 and therefore increasing the risk of social stigmatization. Privacy issues and the inability of the FPUs to provide immediate protection to them are further impediments.
50. The Attorney General's Office has established several Gender Units which started to operate in 2012 with the objective of integrating gender in the work of Public Prosecutions Services (PPS) and developing specialized services on VAW. A new Chief Prosecutor was appointed in 2014 to work closely with the gender experts with the purpose to institutionalize gender in the work of the PPS and improve access to justice. 15 specialized Public Prosecutors were assigned by the Attorney General in 2014 to investigate cases of violence against women in different district offices, with an emphasis on confidentiality, sensitivity and rapid legal procedures. In addition, a new specialized public prosecution on Protecting Family from Violence was established in February 2016 with the aim of improving protection for women victims of violence and accountability. These specialized prosecution services work at investigating, litigating, prosecuting, appealing and monitoring the enforcement of decisions in cases of violence against women and children, in both the public and private sphere, and are also specialized in dealing with sexual and electronic crimes. Presently there are 23 specialized prosecution services in 10 districts. The Rapporteur was informed that such units have police women officers but that they are understaffed. These centres provide core child protection services, psychosocial assessment, risk education and outreach to vulnerable families and children. The Rapporteur was appraised of the future plans of the Gender Unit aimed at developing a legal strategy to increase punishment and raise prosecution of VAW cases, including building the capacity of the PPS on the use of international treaties, such as CEDAW, in litigation.
51. The Rapporteur notes however that among the main obstacles identified by the PPS themselves are the absence of a special law on gender-based violence, an outdated criminal code, the absence of law on electronic crimes and the absence of protection orders, a lacking specialized judiciary on VAW, and a lack of use of constitutional tools and treaties in litigation by lawyers.44 Additionally, the issue of law enforcement of court decisions when for example a husband flees to area C is very acute as the Palestinian authority loose jurisdiction to enforce its courts' decisions.
52. The Rapporteur also observes that some judges still have traditional views and apply gender stereotypes on violence against women which affect their verdicts in domestic violence cases. Judges often exercise their judicial discretion in ways that are unfavourable to women victims of violence.
53. The Rapporteur notes that there is no legal aid system in the State of Palestine that institutionalizes legal aid in a sustainable way and supports the coordination of legal aid and quality service delivery. Currently, most legal aid services are provided through civil society organisations (CSOs) and university legal clinics, which are primarily donor-funded. To facilitate women's access to justice, only few women's rights organisations are in a position to support victims by providing free legal assistance.45 The Rapporteur notes the draft law of 2016 regarding legal aid for those in need and which adopts a positive measure in favor of women, giving them explicit priority from benefitting of such aid.
Women's empowerment: education, employment and political participation
54. Decades of Israeli occupation in parallel with the continuation of patriarchal attitude in Palestinian society expose women to subordination and continuing violence and marginalization from playing an active role in political life, to engage in economic and social life and ultimately to make their own decisions.
55. Important factors that are underpinning VAW in Palestine are also lack of education and employment for women. Because of the conflict, young girls' education has been compromised. For example, UNRWA students in the West Bank lost 83 days of school between October 1 2005 and 9 March 2016 due to raids and incursions in the vicinity of the schools”. Children's right to education is further impacted by high levels of harassment and attacks by Israeli soldiers47. On their way to school, it is not uncommon for girls and boys to witness or be the victim of violence or being impeded by the checkpoint to access school facilities. Thus many parents prevent their children, especially their daughters from attending school. In 2015, 286 education-related incidents affecting 7124 girls were recorded by UNICEF.
56. A longstanding view on women's employment, in line with the patriarchal perception that women's rightful place is the house to provide and care for male members of the family, is that Palestinian women should seek and be granted employment as a last resort and women's employment is not perceived as a human right. This perception, coupled with limited work opportunities, has led to a striking employment gap in the Palestinian labour market.48 Palestinian women account for 17.4 % of the formal labour force (14.7 % in the Gaza Strip; 18.9 % in the West Bank) compared to 69.1 % for men, one of the lowest levels of labour force participation in the world. They account for 20.9% of the formal labour force in rural communities; 16.8% in urban communities and 15.7% in refugee camps. 32.9% of Palestinian women are unemployed (25.3% in the West Bank; 50.1% in the Gaza Strip), compared to 20.5% of Palestinian men (17.3% in the West Bank; 26.8% in the Gaza Strip). In 10 years, women's overall unemployment rate has almost doubled, from 17% in 2002 to 32.9% in 2012, while for men the rate has decreased from 33.5% to 20.5% over the same time period.49
57. Social, cultural and institutional barriers to women's labour market participation are further exacerbated by Israeli restrictions that impede mobility and perpetuate weak demand for labour in the formal economy, resulting in substantial loss of economic potential, particularly in view of the high levels of educational attainment of Palestinian women.
V. State responses and measures to address violence against women
A. Legislative framework
58. The Palestinian Basic Law, promulgated in 2003 and last amended in 2005, functions as a temporary constitution. Although the Palestinian Basic Law establishes important right50 which are to be enjoyed on the basis of equality and non-discrimination, such as equality before the law without distinction based upon sex, many laws, such as the penal code and personal status law are in contradiction with the principle of nondiscrimination on the basis of “sex” and the principle of equality between men and women. Also, the guardianship clause in the personal status law promotes the dependency of women, considering them incapable of making decisions. The Rapporteur notes the requirement under article 4 that 'the principles of Islamic Shari'a shall be a principal source of legislation'.
59. The Rapporteur received information according to which the Government has recently established a harmonization committee for the laws of the State of Palestine which has started reviewing the penal code.
60. The Rapporteur was informed that some work is ongoing on a draft Constitution for the State of Palestine but that there is no clarity yet in this process and on the issue of transposition of international law into domestic law (monist or dualist model). She is concerned about equal participation of women in this process including women representatives of civil society.
61. The current legislative framework in the West Bank and Gaza is either made of a combination of unified laws promulgated by the Palestinian Legislative Council and ratified by the President, or, where no unified law has been promulgated, existing Jordanian and Egyptian laws continue to apply in this areas.51 In East Jerusalem, considered by international law as occupied territory52 the Israeli law has been applied.53 As noted also by the former mandate holder, this multiplicity of laws has led to the lack of consistent and uniform Palestinian legal references.54
62. There is a limited legal framework on gender equality and the principles of nondiscrimination and equality between women and men have not been embodied in national laws, hence, not extended to both the public and private sphere. The lack of gender sensitive legislation, outdated legal frameworks, discriminatory laws and inaccessible justice system are some of the main issues that women and girls face.
63. The legal framework has yet to adapt to become fully in line with human rights standards, and in particular the principle of non-discrimination and equality between men and women. Relevant laws are spread across legislation adopted under multiple legal regimes, with the Palestinian laws, laws of the British Mandate, Jordanian and Egyptian laws and even laws from the Ottoman period. Combatting violence against women is therefore embedded by an outdated non-harmonized legal system which contains discriminatory provisions.
64. The main legal references to combat crimes and criminal offences are the Jordanian Penal Code of 1960, applicable in the West Bank and the Penal Code of 1936 in the Gaza Strip. The Rapporteur notes in that regard that the penal legislation contains several discriminatory provisions based on sex, age and marital status55. In 2003 a new Penal Code was presented but the mandate holder was informed that the adoption has been delayed due to the current political division in Palestine and the resulting paralysis of the legislative process, the Palestinian Legislative Council (PLC) has not been able to meet since the last Parliamentary election in January 2006 and the political division between West Bank and Gaza and led to the restriction of PA rule to West Bank only. For West Bank, the Rapporteur was however informed of the possibility, based on article 43 of the Palestinian Basic Law to use presidential decree to legislate until the PLC reconvenes and the legislation adopted by presidential decree is reviewed by the PLC. The Rapporteur notes that this clause has been resorted to by the President, including for the accession in April 2014 to a number of international treaties, and that when doing so, members of PLC have been consulted informally. However, and while a total number of 140 laws were issued by Presidential decree between June 2007 and the end of 2015, only 2% of these decrees were issued in relation to women's rights but none had a clear impact in addressing violence and discrimination against women56. This is revealing of a normative socio-cultural structure which places women and girls in a subordinate position to men simply because they are women.
65. In 2011, The Palestinian President has issued a decree amending some provisions of the Penal Code No. 16 of 1960 in place in the West Bank and the Penal Code No. 74 of 1936 in place in Gaza, aimed at deterring so-called “honour killings” by eliminating pardoning excuses for the perpetrators of such crimes. The Decree abrogated article 340 of the Jordanian-era penal code of 1960 and its equivalent in the 1936 Law applied in the Gaza strip, that allowed for pardon or mitigated sentences against men accused of so called “honor” crimes, and Article 98 of the same penal code which effectively allowed perpetrators to plead “honor” as a mitigating factor in crimes against women. Article 18 of the 1936 Penal Code, legally allowing for legitimization of honour killings, was also amended by adding the phrase “not including the murder of women on the grounds of “family honour” at the end of the article.57
66. Despite these positive steps, the mandate holder expresses concern regarding the resort by defense lawyers to articles 99 and 100 (relinquishment of personal right) whose application mitigates the penalty of killing, including if the victim comes from the same family of the perpetrator. The punishment sentence is then left to the discretion of the judge in accordance with the circumstances of the act. The Rapporteur was informed that most court rulings are based on these two provisions of the law, thereby denying women victim access to justice.58 and undermining the impact of the legislative amendments which were meant to act as a deterrent for crimes of killing women under the pretext of honour. The Rapporteur is particularly appalled by a two-year sentence delivered by a Criminal Court in Nablus for the killing of a wife by her husband, the judge having applying far-reaching discretionary powers under article 99 and 10059. This case emblematic of the patriarchal mind-set of the judiciary when handling crimes of this nature extremely lenient sentence for perpetrators of such crimes.
67. Additionally, parents violence towards children is still justified under the article 62 of the law in the name of disciplinary actions, where the act of violence is considered permitted by the law and by the general custom. The Rapporteur was informed that this provision is often used in defence of a perpetrator abusing and/or killing his daughter under the justification of “on disciplinary basis”.
68. The Rapporteur notes with concern an absence of a specific law that directly regulates cases of VAW. In that respect, she was informed of the drafting of a Family Protection Act which would criminalize violence against women and provide protection measures against violence. Due to the current gaps related to services providers' capacities and government sponsored shelters, women victims of violence have often no alternative place to live than their houses. Moreover, female victims of violence are subject to patriarchal traditions and social norms that prevent them from seeking protection from violence outside the family.
69. Domestic violence is not defined as a specific crime and is being dealt within the “general abuse” articles of the Jordanian Penal Code (from article 333 until article 337). According to the 2003 Draft Penal Law domestic violence is a crime punishable by a two year prison sentence, but legal action against the perpetrator can only be taken if the victims herself, or a relative to the fourth degree for minors under 15 years old files a complaint. The Rapporteur observes that family honour constitutes a direct impediment to this system of denunciation, as members may pressure the female victim to not come forward if she is of age, or refuse to file the complaint if she is under 15. The Rapporteur is also concerned about the fact that the Personal Status Law requires a male relative (wali) to file a complaint on behalf of the victims if she is under 18 years of age. This becomes especially difficult when the family member is the perpetrator and shelters and government institutions have no legal capacity to accompany a minor to file a complaint.60
70. According to article 308 of the applicable Jordanian Penal Code of 1960, a case may be dismissed if the perpetrator of the rape or sexual violence marries his victim. Female victims are often pressured to accept the marriage proposal to preserve the family “honour”, avoid social stigma or even lose their life. The Code does punish a man who deflowers a virgin, promising her marry her under Article 304. However, women rarely report the case, again because of honour61.
71. Sexual harassment is not criminalized while the draft penal code provides for its criminalization.
72. Other problematic areas of laws persist, such the as the Personal Status Law. Among the key are of concerns that need to be reformed are property rights, inheritance rights, marriage, divorce, guardianship. The Jordanian Personal Status Law No. (16) of 1976 enforced in the West Bank, and the Family Rights Law issued by virtue of Order No. (303) of 1954, enforced in the Gaza strip, grant men exclusively the power to file for marriages and the right to guardianship and trusteeship. It also considers a man responsible for supporting his wife, and so she must obey him and accept his decisions with regard to changing their place of residence or preventing her from working. The law also grants the man the right to divorce with no conditions or restrictions while conditioning the wife's right to request divorce on presenting justifications and the consent of the Sharia judiciary62. The Rapporteur notes some encouraging efforts made in 2012 at reforming the Personal Status Law but further notes that most provisions are still in contravention to article 15 and 16 of CEDAW.
B. Policy framework
73. The Rapporteur welcomes the establishment in 2013 of the National Referral System for Battered Women knows as «TAKAMOL», a legal-health-social service referral system for women victims of violence initiated in 2009 upon initiative from local CSOs and developed by WCLAC and Juzoor Foundation for Health and Social Development. She notes that its use is now mandatory for all centres providing services for battered women as well as for the police, health and social affairs sectors.
74. There are only three shelter centres in the West Bank and one in the Gaza Strip, as well as a National Consultative Committee for shelter centres. In the Gaza strip, there are currently two women's health centres in the areas of Jabalia and Bureij. They are managed by a group of professional female staff and provide health, reproductive, psychological and recreational services to women. The centers are both active members of the UNFPA supported coalition WISAL, a network of 20 NGOs all over the Gaza strip and serve as model approach whereby women help to shape the services they are provided with.
75. Most of the existing hotlines and shelters for battered women are managed by the Ministry of Social Development. MEHWAR, which the Rapporteur visited and which is a pilot centre in the Middle East, offers the first national and multi-purpose centre combining prevention, protection, empowerment, and community-awareness activities, while offering social, psychological, and legal counselling services, in addition to being a shelter for women and their children.
76. Only few CSOs, such as the Women's Centre for Legal Aid and Counselling run emergency protection shelters and provide social and legal services to women victims of violence. Counseling services, psychological support and empowerment services are also provided by various other women's organizations with funding from foreign donors in coordination with the Ministries of Social Development and Women's Affairs.
77. Implementing proactive services for women is made difficult as well by the lack of infrastructures. Particularly in marginalised areas, transportation and better facilities are needed. Economic hardship only deepens the challenge for women victims of violence of seeking for protection facilities. Furthermore, there are very few shelters and safe houses willing to provide protection to women with disabilities.63
78. The Rapporteur is concerned that no nationwide statistics on cases of violence against women exist, including data on domestic violence, rape, incest, femicides and honour-related crimes. Moreover, no systematic analysis is being conducted with a view of identifying shortcomings of the system, prioritizing the end of violence against women at all levels, and finding concrete solutions.
79. Another reason why women continue to face violence at such a large scale lays on a lack of awareness of their rights. The Rapporteur notes that more educational/awareness programs addressed to women of all ages should be created. Several national awareness campaigns on ending violence against women are being implemented by local women's rights and human rights organizations. The Ministry of Women's Affairs has also conducted several awareness campaigns over the past 3 years but more needs to be done.
80. The Palestine Citizen Police Academy provides training programs to public officials on women's rights and protection of battered women, as well as safe referral mechanisms for service providers in the social service and health sectors. While it was reported that training have been successful in changing mind set perception on VAW, the Rapporteur notes that these trainings provided remain partial, as they are not conducted in accordance with a comprehensive strategy of capacity building in violence against women prevention.
C. Institutional framework
81. The Ministry of Women's Affairs (MOWA) works to combat violence against women and aims to develop a governmental commitment towards gender issues in order to enhance women's role and guarantee their political, economic, and social rights. The MOWA, as the Ministry in charge of CEDAW, is committed to harmonize laws and policies. It faces many challenges in its work, including lack of accurate statistics which it could use to influence politicians and increase public awareness. To combat this, the Rapporteur welcomes that MOWA plans to establish in 2017 a National Observatory on Violence Against Women in collaboration with the Ministries of Social Development and Health, the police and a number of civil society institutions. The Rapporteur notes that the establishment of such a national observatory on VAW, which is in line with the call64 she made and her thematic work on the issue, should have the potential to serve as a powerful and compelling tool for decisions-makers to make the necessary changes in the laws and policies to protect women.
82. Due to the Palestinian internal political division, the existing governmental mechanisms put in place in the West Bank have not been paralleled in Gaza. The de facto authorities in Gaza have taken a number of measures and opened some channels of coordination with local women's organizations but on the whole these have been very limited. The available responses are mainly provided through humanitarian and development interventions that support local organizations providing services responding to gender-based violence.
83. In August 2016, under the leadership of the MOWA, the National Action Plan on the implementation of the UNSCR 1325 was adopted. The Rapporteur commends the Government for such adoption which sends a strong signal to Palestinian women and girls, recognizing their key role in advancing the peace and security agenda, while recognizing at the same time its own responsibility in responding to their needs.
84. The Ministry of women's affairs has adopted a cross-sectoral “National Strategy to Combat Violence Against Women2011-2019” and established a technical committee to review femicides and to review legislation from a gender perspective. The Plan aims to promote the rule of law based on women's rights and improve institutional mechanisms by improving social protection and social support and health services offered to female victims of violence.
85. The Cross-Sectoral National Gender Strategy serves as a political road map for the government to address gender-related issues and supports the implementation of the National Plan. This strategy hopes to serve as a reference point of the development of appropriate and gender-responsive policies that would guarantee women's rights in Palestine.
86. The Rapporteur observed that there are not enough social programs promoting women's rights in Palestine. The Ministry of Social Development, which as part of its mandate raise awareness, empowers women economically, also provides women with permits and reports in order to access shelters. However these shelters usually do not have enough social workers or a good follow-up system after the end of official working hours, forcing women to wait in police stations until they open the next day. The gaps in the system and the lack of protective laws means that women must seek help from outside of formal protective frameworks.
87. Another key mechanism for combatting violence against women is the National Committee to Combat Violence Against Women, which was established in 2008 by the Palestinian Council of Ministries and is led by the Ministry of Women's' Affairs. The Committee is responsible for following up and monitoring the implementation of the National Strategy to combat violence against women. Its wide-ranging membership includes a variety of key line ministries and other governmental institutions, as well as non-governmental institutions represented by the NGO Forum for combating VAW (Al Muntada) and the General Union of Palestinian Women (GUPW).
88. The Independent Commission for Human Rights (ICHR), which is the National Human Rights Institution in Palestine, receives complaints from Palestinian citizens regarding human rights violation, including women's rights, and handles them with official bodies. It has a legal mandate to report without restriction on the national human rights situation (on specific matters or through thematic reports) and violations of any human rights. It can make recommendations to the government, Parliament and other competent bodies on matters concerning legislative or administrative provisions, and promote the harmonisation of national laws and practices with Palestine's international obligations and the implementation of recommendations of international human right mechanisms. Its mandate allows it to engage with the International human rights system and conduct public education and awareness. It also monitors prisons and detention centres, and issues reports monitoring human rights, including on cases of killings of women. The ICHR reported positive developments, such as the openness of the Palestinian authorities to discuss human rights issues; training and capacity building of its officials, criticism and some legislative initiatives such as the adoption by presidential decree in February 2016 of the juvenile protection law which unifies and updates the legislative framework in this field and recognizes minors as victims in need of protection, rehabilitation, and reintegration into society, rather than as criminals deserving of punishmen65. However, the ICHR reported still an overall lack of State's accountability for human rights violations.
89. Civil society organizations have been delivering services, raising awareness, advocating and lobbying to end violence against women. They work in collaboration official institutions, such as the Ministries of Women's Affairs, Social Development and Justice, to provide psychological counseling and legal aid services to women victims of violence. Jointly with official institutions, CSOs have also undertaken policy-level responses such as the Palestinian National Development Plan 2014-2016 which promotes “a rights-based, gender-sensitive, and a more inclusive, integrated and sustainable social protection system to alleviate poverty, marginalisation and social exclusion”, as well as “Palestinian women's empowerment to enjoy more protection and better participation in the labour market and public life.”
VIII. Conclusions and recommendations
90. During the visit, the Special Rapporteur noted that violence against women occurs both in private and public spheres, women suffering multiple sources of discrimination and violence: they suffer the violence of the Israeli occupation, whether directly or indirectly but they also suffer from a system of violence emanating from the tradition and culture, with embedded patriarchal social norms and multiple outdated legal framework. She however notes ratification of the CEDAW Convention and ongoing efforts related to harmonization and revisions of numerous laws relevant to combat and prevent violence against women that is now less of a taboo that it was at the time of the visit of her predecessor.
91. With respect to the observed gaps in fulfilling State's obligations, including due diligence obligation to prevent violence against women, to protect and provide remedies to women who have been subjected to violence and to prosecute and punish the perpetrators, the Special Rapporteur would like to address the following recommendations to the Government.
92. Law and policy reforms
b) Consider in its new Constitution making the CEDAW convention directly applicable; urgently ensure that the composition of the Constitutional Committee is gender balanced and include representatives of the civil society;
c) Urgently undertake all necessary legal and administrative and legislation action to amend the Penal code so as to repeal or amend discriminatory provisions which contribute to perpetuating violence against women. More specifically: Repeal or amend article 99 and 100 and any other legal loopholes in the Jordanian penal code to ensure that such provisions are not applicable in cases of violence against women; adequately dame and criminalize different forms of violence against women, including marital rape or adopt a unified Penal Code in line with the CEDAW and international standards;
d) adopt a unified Personal Status Law which guarantees equality and non discrimination in family relationship, including in relation to marriage with a minimum legal age of marriage for girls and boys, with or without parental consent, established at 18 years ;
e) Adopt the draft legislation on domestic violence/family protection and ensure that it is in line with accepted international standards on women's rights from CEDAW Convention and that it addresses prevention, protection of victims and prosecution of perpetrators and that it provides for protection orders and sufficient number of shelters;
f) Ratify the Optional Protocol to CEDAW;
g) Provide mandatory training to law enforcement officers, members of the judiciary, including judges and prosecutors, on the CEDAW Convention, the General recommendations and the Committee's jurisprudence on violence against women;
h) Strengthen efforts to combat discriminatory gender stereotypes among the society, including in the media;
i) Conduct awareness-raising campaigns and programs, including in cooperation with the Public defender and civil society to increase awareness and understanding among the general public and women of all ages of the different forms of manifestations of violence and to make them aware of their rights and avenues of redress;
b) Strengthen and ensure the sustainability of both the Specialized Public Prosecutors and the Family and Justice Protection Units and adequate staffing of women in both;
c) Consider establishing specialized courts or specialized judges dedicated to cases of violence women;
d) Provide judiciary specialized training in gender based violence and improve access to justice, incorporate modules on CEDAW, the Declaration on the elimination of violence against women and national provisions on gender equality and domestic violence (including recent amendments in the penal code) in the programmes of public service training institutions, including the judiciary;
e) conduct awareness-raising campaigns and training for law enforcement officials, the judiciary, health-care providers, social workers, community leaders and the general public, to increase understanding that all forms of violence against women are human rights violations;
f) Improve access to services and shelters and to that effect, provide for sufficient and adequate shelters for women who are victims or at risk of violence, both on the short and long term (emergency shelters and alternative housing solutions) and services, including financial and legal assistance; particular attention should be placed on women with disabilities;
g) Ensure implementation of the NAP on 1325 with a focus on the full inclusion of women in any peace and development efforts, and adequate budget allocation to the realization of the plan;
h) Engage a constructive dialogue with the Israeli authorities on the issues relating to violence against women under joint responsibility;
b) Establish a “femicide watch” or “gender-related killing of women watch” and collect and publish each year data on the number of femicides (family related and all other cases of femicides) and establish a separate body or entrust and exiting body to analyse each case of femicide in order to identify any failure of protection with a view of improving and developing further preventive measures.
b)better coordinate between donors and NGOs to avoid duplication and overlapping of projects and policies aimed at ending violence against women; the area of prevention of VAW should be better funded and the availabilities and capacities of services providers enhanced;
c) include the gender perspective in the projects funded and strengthen its financial support for shelters and other services for victims.