October 15, 2005 | Volume 2, Issue 2
Womenâs Rights in the Middle East
Will Iraq Follow Saudi Arabiaâs Example?
Introduction
Islam has always afforded women’s rights. As far back as 600AD, women were allowed to own land, inherit property, and realize civil liberties that most of the world didn’t see until the 20th century.1 However, under Shari’a law, as interpreted and applied in certain countries such as Saudi Arabia, rights are accorded to men and women based on their gender. Prevailing cultural implications and male dominance in society have greatly influenced Shari’a law in Saudi Arabia.
Shari’a is an Arabic word used to describe Islamic law. Because Islam does not distinguish between ‘church and state,’ Shari’a not only governs religious rituals, it also dictates all aspects of life in a society, including economics, business, banking, land ownership, contracts and social issues. Shari’a refers to the principles set forth in the Quran and Hadiths. However, the interpretations of these principles lay in the hands of Islamic scholars. ‘Figh’ refers to the way one interprets, understands and determines the terms and judgments of Shari’a from the principles. In a perfect world the actual principle and its interpretation would be the same; however, this is not always the case, especially in fundamentalist and conservative Muslim cultures.
Certain ‘Shari’a laws’ are based not on the teachings of Muhammad but on principles of Islamic scholars, lawyers and judges. This essentially makes Shari’a nothing more than an extraction or opinion on a given matter. Therefore, though many Muslims believe that Shari’a is divine rule, it is actually the personal interpretation of principles based on a scholar’s own understanding. Often conservative Muslim leaders interpret these principles in such a way as to reflect harshly on women and other minority groups.
History
The topic of Shari’a interpretation has again come to the fore with the recent heated discussions on the Iraqi Constitution. This paper will trace, as a case study, Shari’a law in Saudi Arabia, the rights violated under Shari’a law, and the international protections available under the United Nations Human Rights Covenants. It will then discuss some specific challenges that Iraqi women face in light of the language of their new draft constitution.
Women, both of Saudi citizenship and foreign, are often victims of discrimination and human rights violations. With the rise of conservative Islamic culture as well as the ongoing adherence to Shari’a, women in parts of the Middle East continue to be treated as second-class citizens. In Saudi Arabia, an unmarried adult woman is a ward of her father. Once married, she becomes a ward of her husband. Without the express permission of her male guardian (‘mahram’), a woman cannot be admitted to a hospital, obtain an exit visa, or attain an identification card. Furthermore, women are strictly segregated from men in public. They are required to wear an abaya (a black garment that covers them from head to toe) at all times when outside of their homes, barred from workplaces, educated in female only schools, restricted to “family sections” of restaurants and made to shop in female-only stores. They are prohibited from driving and forbidden to travel without the company of a male relative. In fact, women cannot leave the country without the written permission of a male relative, and may not even travel in a taxi unless accompanied by her mahram or husband. Women are made to enter buses from separate entrances in the rear and must sit in designated sections.2 In other words, the ability of Saudi Arabian women to move about freely is nearly non-existent. This lack of freedom of movement has severe impact on other basic human rights, such as the right to work. Foreign domestic workers are often locked inside their workplaces and forbidden to leave. This restriction of movement makes any course to redress for this and other human rights virtually impossible.3
In Saudi Arabia, all associations (men’s and women’s) are limited and restricted by the state and as a result political parties and trade unions are strictly forbidden. Other organizations must be registered and can be shut down without judicial recourse at the whim of the government. Traditionally, women have been prevented from participating in public activities, and are not permitted to vote or run for public office. As a consequence of these rules, there are no women’s rights organizations operating within Saudi Arabia. In turn, the lack of women’s organizations leads to a lack of viable information and documentation on violations of women’s rights.4
Education in Saudi Arabia is available to women, and they make up 55 percent of university graduates.5 However, women’s educational curriculum is administered differently than men’s. Women’s curriculum focuses on making a girl into a respectable and competent Islamic wife and mother. Therefore, although the participation in education of Saudi women is significant, they are forbidden from studying certain courses such as engineering, law, or journalism. Furthermore, evidence of women’s strong participation in education is all but absent from the actual workforce, in which women hold only 2 percent of jobs, and may only be employed in segregated environments with other women.
The basic legal code of Saudi Arabia provides for the security of all persons in its jurisdiction. It maintains that “the state ensures the security of all citizens and residents. No one has the right to restrict, arrest or imprison anyone except under the rules of the system.” However, implementation of the “rules of the system” has become lax and now arbitrary arrests are a part of daily life. Women are often chastised and detained by the al-Mutawa’een (the Religious Police, The Committee for the Propagation of Virtue and the Prevention of Vice) for violations of the moral codes such as walking alone or showing any part of skin under their abaya. To make matters worse, women are often victims of unfair trial procedures, and are unable to seek redress for abuses at the hands of non-state actors. Women in Saudi Arabia face government-sponsored discrimination that renders them unequal before the law, including discriminatory family codes that take away women’s legal authority and place it in the hands of a male family member.6 In the legal realm, the testimonies of women are weighed less than a man’s in legal proceedings, and in fact, in Shari’a court, the testimony of one man equals that of two women. Laws covering such issues as marriage, divorce, inheritance and child custody severely discriminate against women. Beyond this, most trials are not public. Women must legally specify grounds for divorce, where men may divorce without giving cause. Finally, most trials are not public, so this blatant discrimination against women is not widely publicized.
The failings of the Saudi Arabian criminal justice system perpetuate torture and ill treatment. The lack of access to lawyers, family and doctors, the dearth of oversight on arrests and detention, and the reliance on confessions as the sole form of evidence creates an environment in which torture flourishes. Female detainees are often interrogated alone and by males. This leaves them completely vulnerable to the threat of abuse, particularly sexual abuse. Women are also often flogged for “moral crimes” such as walking alone.7
Although basic Saudi law guarantees the inviolability of homes and the privacy of correspondence, there are events where these rights are violated, and customs officials routinely open mail and shipments to search for contraband. As a part of Saudi law, women are not allowed to marry non-citizens without government permission. In accordance with Shari’a law, women are not allowed to marry non-Muslims. In contrast, men are allowed to marry Christians, Jews or Muslims.8
Saudi Arabia still employs the death penalty, even for crimes that are non-violent in nature. For instance, if a woman commits adultery, under Shari’a law she may be put to death. The unfairness of capital trials and the particular vulnerability of women to forced confessions are of particular concern.9
Saudi Arabia’s inability to protect women from the acts of non-state actors as well as the continued impunity of those that commit violent acts against women is disturbing. Limitations on the freedom of movement often make it difficult to seek safe haven or redress for domestic violence. Domestic workers are often knowingly held captive by their employers and are denied any sort of rights based on their gender and religion (many are non-Muslim).10 Domestic workers are not afforded protection under labor codes; they are frequently overworked and locked in their employer’s homes, making them vulnerable to sexual and physical assaults. The conditions that domestic workers face are tantamount to slavery.11 On a wider scale, domestic violence is a quiet secret in Saudi society. Authorities do not publish statistics, and the state tolerates men chastising their wives for certain things such as disobedience. Police do not respond sympathetically to wives who have been beaten by their husbands, and the legal system offers women virtually no recourse.12 There are also no centers or shelters for women who are at risk of abuse and who want to flee. Information on state support for counseling or other treatment services is not available. Even for serious crimes, the legal system provides little help or refuge for women. For example, in the case of rape, either a confession or four witnesses are required to convict the accused. Rapists are almost impossible to convict, so the impunity continues and women are left without a voice.13
The Impact of International Law
Saudi Arabia is a member of the United Nations and is thus expected to abide by the Universal Declaration of Human Rights. The UDHR is considered to be international law, so Saudi Arabia is bound by the ideas set out in its preamble, including the notion that a state must recognize the “inherent dignity and… inalienable rights of all members of the human family.” The preamble also affirms that member states believe in “fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.”14
Saudi Arabia agreed to accede to the Declaration on the Elimination of Discrimination against Women (CEDAW) during the 70th session of the UN Convention on the Elimination of All Forms of Discrimination against Women, held in May 2000. However, Saudi Arabia registered two very serious reservations. First, the Saudi government claimed that “in case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention.” In effect, this reservation completely nullified the accession to the convention. The second reservation states that “the Kingdom does not consider itself bound by paragraph 2 of article 915 of the Convention and paragraph 1 of article 2916 of the Convention.”17
Saudi Arabia also acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of the Child (CRC). Both CERD and CRC were adopted with serious reservations about articles that contradict Islamic Law. Saudi Arabia has not signed or acceded to the International Covenant on Civil and Political Rights (ICCPR) or the International Covenant on Economic, Social and Cultural Rights (ICESCR). Saudi Arabia has also ratified several International Labour Organisation (ILO) Conventions. Of particular interest is Convention No 111, the Discrimination (Employment and Occupation) Convention.18
International human rights law requires states to be responsible not only for human rights abuses perpetrated by officials, but also for protecting people from human rights abuses by private citizens. Furthermore, Article 1 of CAT established state responsibility for acts of torture if carried out by private actors with the “consent or acquiescence of a public official.”19 The Saudi government not only perpetrates human rights abuses but also turns a blind eye to the egregious actions of their citizens.
The Challenge for Iraq
Iraq now stands in a precarious position. The women of Iraq have always been afforded far more freedom than their sisters from other Muslim countries. The Personal Law Status of 1959 granted equal family rights to men and women, including marriage, divorce, inheritance, and child support rights. After the Baath party seized power in 1978, women began to be admitted to universities and were eligible for public employment, even in governmental positions. In 1970, the Provisional Constitution was drafted and actually provided for equal rights between men and women.20 However, years of progress for the women of Iraq could all be over now. The Iraqi National Assembly has finalized a draft that was voted on by its citizens in a referendum on October 15, 2005. Though there are questions as to the legitimacy of this referendum, initial reports indicate that the draft constitution was indeed accepted by Iraqi citizens.
The language of constitutions is extremely important. “We the people” is a familiar phrase for most Americans. In three words, this phrase from United States Constitution lays out the fact that the laws follow are for all Americans: all genders, all races and all walks of life. Certainly, the ideals of this document are not always realized, but at least they give Americans something towards which to aspire. Conversely, the preamble of the Iraqi constitution starts out quite differently:
We the sons of Mesopotamia, land of the prophets, resting place of the holy imams, the leaders of civilization and the creators of the alphabet, the cradle of arithmetic: on our land, the first law put in place by mankind was written; in our nation, the most noble era of justice in the politics of nations was laid down; on our soil, the followers of the prophet and the saints prayed, the philosophers and the scientists theorized and the writers and poets created.
Perhaps the first few words of the Iraqi Constitution speak volumes as well. Does the phrase “We the sons” mean that there are no ‘daughters of Mesopotamia’? Perhaps this is merely a glimpse into what women really have to look forward (or perhaps back) to with regard to their rights as Iraqi citizens.
Article 2, Part 1, of the Draft Iraqi Constitution states that:
Islam is the official religion of the state and is a basic source of legislation:
a) No law can be passed that contradicts the undisputed rules of Islam.
b) No law can be passed that contradicts the principles of democracy.
c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.21
The first concern with Article 2 is that Islamic Law, or Shari’a, is not ‘undisputed.’ It is, as discussed in the introduction of this paper, an interpretation of lawyers and scholars, not the holy writings of Muhammad. By stating that no law that contradicts Islam can be passed, the basic rights and freedoms outlined in the constitution send a confusing message. Which of these forces possess the most overarching strength? Are human rights more important than Islamic Law? Or are the principles of democracy most important?
Article 44 discusses the rights of Iraqi citizens as afforded by international human rights agreements:
All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don’t run contrary to the principles and rules of this constitution.
Iraq has signed onto the following international covenants: International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of all forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). Signing these documents legally binds a country to abide by the rules they stipulate. However, it is not clear what structural framework is or will be put into place in Iraq to ensure that international standards are upheld. In Saudi Arabia, no such framework exists and therefore the standards set forth in the covenants are basically moot.
Conclusion
It is without doubt that women’s rights in much of the world are being violated at alarming rates every day, particularly in the Middle East. It is important to realize that there are many contributing factors to why these violations take place, including political, economic, social and cultural issues. We must take note that the groundwork for such abuses to continue is being laid right now in Iraq. The issue of women’s rights must be addressed in a meaningful and comprehensive way in Iraq. A country cannot truly become a viable democratic state without the participation and advancement of its women. Women’s rights must be absolute and guaranteed, and must not be subject to the interpretation of law by religious figures.
1 Saudi Arabia: Emancipating a nation, Lubna Hussain, Arab News (1 Apr 2005)
2 Brown, Lucy and Romano David. Women in Post Saddam Iraq: One Step Forward or Two Steps Back? McGill University Press. 2004.
3 IBID
4 IBID
5 US Department of State: Country Report for Saudi Arabia, 2004
6 Human Rights Watch, “World Report 2002: Saudi Arabia,” 2002,
7 IBID
8 IBID
9 IBID
10 IBID
11 IBID
12 IBID
13 Amnesty International. “Saudi Arabia: Gross Human Rights Abuses Against Women” September 2000.
14 Universal Declaration of Human Rights
15 CEDAW Paragraph 2, Article 9: “States Parties shall grant women equal rights with men with respect to the nationality of their children.”
16 CEDAW Paragraph 1, Article 29: “Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.”
17 Declaration on the Elimination of All Forms of Discrimination against Women (CEDAW)
18 Amnesty International. “Saudi Arabia: Gross Human Rights Abuses Against Women” September 2000.
19 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
20 Brown, Lucy and Romano David. Women in Post Saddam Iraq: One Step Forward or Two Steps Back? McGill University Press. 2004.
21 Iraqi Constitution: AP Translation