"Laws that excuse or guarantee lenient sentences to murders must be abolished" [Getty]
22 February, 2017
In January 2017, the Civil Society Forum against Gender Violence organised a demonstration in front of the Court of Cassation in Ramallah.
The protestors demanded the court harshen the punishment imposed on Suha Deek’s murderer, who was convicted by a lower court in Nablus, sentenced to two years in prison.
Suha’s murderer was her own husband, and he murdered her in front of their five children. The outrageously lenient punishment in Suha’s and in other similar cases could only be described as an upfront assault on women’s right to life and human dignity, and a complete denial of justice.
Violence against women is on the rise in Palestine.
According to Amnesty International, in 2015-2016 at least 18 women and girls were reported victims of gender violence. Feminist and human rights groups have been working for years to combat gender violence in Palestinian society.
With the recognition of the State of Palestine by the UN general Assembly as an observer State, international law can provide them with additional important tools to advance this cause.
Upon the recognition of the State of Palestine, President Mahmoud Abbas ratified 15 international human rights treaties, among those the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Elimination of Discrimination against Women (CEDAW).
Both conventions impose complex legal obligations on their members in relation to combatting violence against women.
The failure of the Palestinian judiciary to protect women’s life and dignity by imposing appropriate punishments on perpetrators, constitutes a clear violation of Palestine’s obligations
Member states owe these legal obligations to their own citizens, and to the international community as a whole. The failure of the Palestinian judiciary to protect women’s life and dignity by imposing appropriate punishments on perpetrators, constitutes a clear violation of Palestine’s obligations under international law.
For starters, CEDAW requires all member states to guarantee equal legal protection of the rights of women, and to ensure through competent national tribunals and other public institutions the effective protection of women against discrimination.
It further requires member states to take all appropriate measures to modify or abolish existing laws, regulations, and social practices that discriminate against women.
According to the CEDAW Committee, which was established to monitor compliance with the convention, member states must adopt effective legal measures, including penal sanctions, to protect women against all kinds of violence.
Embedded in this duty, is an additional duty to abolish any penal provision that excuses or mitigates the punishment of murderers who commit violent gender crimes.
As for the ICCPR, it requires each member state to respect and to ensure to all individuals within its territory and subject to its jurisdiction all the rights recognised in the convention without discrimination of any kind. Those rights include the right to life and personal integrity and the right to equal protection of the law.
The Human Rights Committee, which was established to monitor the ICCPR, has stipulated clearly that the duty to ensure rights entails protecting rights-holders not only from violations committed by state agents, but also from those committed by private individuals.
The failure of states to take appropriate measures, or to exercise due diligence to prevent, investigate and punish human rights violation committed by private actors violates international law.
The murder of a woman by her own family members should not be treated as a typical homicide
Indeed, the right to life is a "supreme right from which no derogation is permitted", it is "the fountain from which all human rights springs". Given the importance of the right to life, the duty to prevent, investigate and punish cases of homicides is considered a central component of it. Supra-national human rights institutions have repeatedly held states accountable for their failure to prevent cases of homicide through reasonable measures, or for the failure to investigate and punish perpetrators.
The murder of a woman by her own family members should not be treated as a typical homicide; instead, it should be treated as the most violent manifestation of deeply rooted gender discrimination and misogyny.
Preventing and combating these heinous crimes requires addressing their structural causes.
An example of such legal obligations is found in the Gonzalez et. al v. Mexico case. In this case, the Inter-American Court for Human Rights held Mexico accountable for the violation of the right to life of three Mexican women, who were brutally murdered in Ciudad Juárez in 2001. Their murder was part of widespread violence against women in the city.
Mexico was held responsible for their brutal death for its failure - inter-alia - to take adequate steps to prevent these deaths, and for failing to investigate the deaths with due diligence. According to the Court, Mexico had the duty to take legal, political, administrative, and cultural measures that would eventually lead to punishing the perpetrators of such heinous crimes.
The human rights of Palestinian women and men are indivisible
In 2011, President Abbas issued a decree putting a moratorium on Article 340 of the 1960 Jordanian Penal Code, which had been in force in the West Bank. This provision originates from the French Penal Code of 1810, and it grants full impunity for male murderers who kill their wives or first degree female relatives if the victim was caught in an illicit sexual act at the time of the murder.
However, the former UN High Commissioner of Human Rights, Navi Pillay, has rightly stated that this measure is far from satisfying.
This specific provision is rarely invoked by murderers in their trials since most violent crimes against women are committed under completely different circumstances. These include silencing a rape victim; the victim’s wish to file for a divorce; the opposition of the victim to an arranged marriage; or for falling in love with the "wrong" person.
It is not surprising then that murderers invoke different provisions establishing mitigating circumstances for their crimes, such as Article 98 of the Jordanian Penal Code. This provision calls for a reduced sentence for offenders who commit their crimes in a fit of fury caused by a previous "provocation" by the victim.
According to Lama Abu Odeh, in neighboring Jordan, Article 340 of the Jordanian Penal Code is rarely used in murder trials. Starting from 1964, Jordanian courts allowed murderers to rely on Article 98 to justify their heinous crimes and get outrageously lenient punishments.
The same year President Abbas issued a moratorium on Article 340, a committee composed of state officials, jurists, and civil society activists presented a draft of a new penal code to the Palestinian Government.
The proposed penal code abolishes all excusing or mitigating grounds for gender crimes. While the draft was approved by the government, it remains dormant in the drawers of the president’s office waiting for his approval.
The Palestinian Authority has relied heavily on international law to protect the right to self-determination of the Palestinian people, and to protect the individual human rights of Palestinians from the harms of the Israeli military occupation.
The Palestinian Authority cannot invoke international law selectively and ignore it when it comes to its own responsibility to protect and ensure human rights.
The human rights of Palestinian women and men are indivisible. Abolishing penal provisions that excuse or guarantee lenient sentences to murders is only a very initial step towards combating gender crimes, but even this step has been long overdue. This needs to end now.
Dr. Sonia Boulos obtained her JSD in international human rights law from the University of Notre Dame, USA. She works as assistant professor of international relations and law at the University of Antonio de Nebrija in Madrid.