Chesler Chronicles

Let's Rescue the Heroes: Free Asma'a al-Ghoul

Today, Britain granted political asylum to a married Saudi princess who had an out-of-wedlock child with a non-Muslim British man. The unnamed princess, married to a much older man, feared that she would be honor murdered, probably stoned to death, back home in the Kingdom.

I recall the 1978 fate of another Saudi Princess, Misha, who dared to fall in love with a commoner. They married secretly, she disguised herself as a man, and was about to flee the country when they were both apprehended; both husband and wife were publicly and gruesomely executed. Two thousands Saudi princesses were forced to watch this sickening spectacle.

Neither Saudi princess was a fighter for others. Each sought personal happiness which, as women, was utterly denied to them. They were—and are—desperate rebels, perhaps even tragic role models.

President Obama has recently promised to allow ” battered” women from other countries to apply for political asylum here. If so, I previously wrote, we will soon find ourselves flooded with such applications.

One might ask: Why doesn’t the fabled “international community” solve such problems where they exist? Why must Americans alone bear this burden? But more important: Aren’t we forgetting something?

Here’s my suggestion. Let’s rescue the endangered heroes first. Why not grant political asylum to dissidents, secularists, humanists, feminists, journalists, and intellectuals, who have endangered themselves by telling the truth and by fighting for freedom and justice for others.

For example, Sudanese journalist Lubna Ahmad Hussein and 12 other women were arrested in Khartoum on July 3, 2009, for wearing trousers. Ten of the women received 10 lashes each. According to MEMRI, “charges were brought against three others, including Hussein, for inappropriate dress and conduct. Incidents of this kind are widespread in Sudan, and are usually disregarded by the local and global media. ”

Not this time. Hussein, brought the issue to the world’s attention by inviting the public to witness her flogging. She sent out invitations to 500 people. She did so for “all women,” so that the world may see for itself how women are being tortured for what they wear.

AsmaPhotoI have written about Asma’a al-Ghoul, the Palestinian feminist journalist who has written about honor killings in Gaza. She is the woman who was arrested by Hamas on the beach in Gaza for wearing “immodest clothing” and for “inappropriate laughter”.

President Obama: With Asma’a’s permission, I am hereby submitting her name for your consideration for political asylum. She has been “battered” by Hamas’s religious police and by an Islamified society and culture which has hardened its position vis a vis women. As a feminist journalist, Asma’a has no future in Gaza. She is actually a member of an endangered species.

Dear Reader: What do you think about this proposal?

Below, please find an edited version of the second part of Asma’a’s article about honor killing laws in Gaza.

Asma’a al-Ghoul on Unjust Honor Killing Laws

For more than a decade, women’s organizations have been struggling to amend the Mandatory Penal Code (74) of 1936 to add provisions addressing family violence–violence mainly affecting women–and to ensure equality between men and women in accordance with Palestinian Basic Law. In 2004, the Palestinian Legislative Council (PLC) approved the amended Penal Code. Women’s organization considered the code now fair for women but many in Palestinian society rejected it, claiming that it disrupted the balance of “social norms.”

When the current PLC was inaugurated in 2006, women’s organizations were hoping that the draft Penal Code would be enacted but these hopes were all in vain due to political fragmentation and the PLC’s paralysis. Lawyer Salah Abdul Aati from the Independent Commission of Human Rights said that the application of today’s Penal Code cannot appropriately protect women as it is outdated. He stressed that article 18 of the unmodified and current Penal Code, an article which provides an escape clause for those who committee “honor” crimes, is amended in the new law. The amended Article 18 considers an honor crime a premeditated killing and only provides an easing of sentence for a man or woman who catches their spouse in the action of betrayal. Abdul Aati desires that the Palestinian National Authority commit to international human rights standards that ensure protection for women, standing against all forms of discrimination, violence, and harassment geared towards women, and codify the protection in domestic legislations–especially the penal code.

He pointed out that Palestinian Basic Law ensures equality between men and women before the law. The law also provides for maximum punishment for crimes of rape and inter-family sexual relationships and mandates that offenses committed by juveniles–especially young females–are to be considered by special courts and qualified judges. Additionally, it calls for the establishment of adequate rehabilitation centers that can provide appropriate care for females whose rights are violated. However, Abdul Aati added, there are no provisions that protect women’s rights against injustice and abuses or provisions that punish those criminals appropriately, ensuring compensation for any physical or moral trauma incurred to the female victims. Abul Aati is calling for an abolishment of all legal provisions that are lenient with the perpetrators of “honor” crimes and female/familial violence as well as stricter penalties on those who commit or encourage committing such crimes
Article 18

Article 18, titled “Necessity” within Penal Code 74 of 1936, is what judges use to reduce penalties for “honor” killings. It prescribes that:

“Excuses may be accepted for committing an action or offence whose commitment is considered a crime if such excuses have been existent if the defendant can prove that he has committed such action or offence to prevent results that could not be avoided otherwise, which if took place would cause a serious damage to him, his dignity or his property, the honor of other persons whom he is obliged to protect, or money deposited with him, provided that he has done what is rationally necessary to achieve this purpose while committing the action or offence, and that the damage resulting from such action or offence is proportional to the damage he has avoided.”

When asked to comment on this article, Lawyer Salah Abdul Aati had this to say: “The wording of article 18 is loose; it does not address a crime of specific necessity, which makes the phrase ‘which if took place would cause a serious damage to him, his dignity or his property, the honor of other persons’ a prelude to find excuses for a murderer who commit a crime against a girl or a woman from his family,” stressing that “this article is more explicit in other penal codes, such as the Jordanian Penal Code.”

There Is Injustice

In his assessment of the way the Palestinian judiciary in the Gaza Strip has dealt honor killings, Judge Ziad Thabet, Chief Justice of Gaza Court of First Instance, said that all considered cases have handed down eased sentencing–even though law stipulates such crimes are a form of premeditated murder–because the principles of necessity or shock stipulated for in article 18 are not applicable to them. He added that sentences have been eased: many sentences were for merely 5 or 3 years in prison and even for just 1 in some cases. He indicated that over the past year, while Hamas has controlled the judiciary following its Gaza Strip takeover, no cases of “honor” killing has been brought before him to consider, stressing that “when this happens, such cases will be dealt with the capital punishment; that is, the death penalty, since all “honor” killings do not take place in a state of caught in action, rather they are based on rumors heard by the father, and even if he is certain of them, the law does not allow him to kill.”

In the same context, Nihad al-Ramlawi, Gaza Chief Prosecutor, said that there are 5 such crimes in the central and southern Gaza Strip that have not been transferred to courts, pointing out that the prosecution in Gaza has not received any complaints related to such crimes. He explained that more of such crimes could have committed but families hide them.

“The ‘Necessity’ article stipulates that the sentence against the killer is eased only if his honor or self is assaulted, which is considered legitimate self-defense, but not if a member of his family is attacked, and even if he attacks or hurts his wife or daughter, his crime will be treated like other crimes,” Judge Thabet said. He pointed out that “all crimes of ‘family honor’ are committed by the father, brother or cousin without certainty, but based on false rumors and incitement, and sometimes such crimes are motivated by inheritance or personal hatred. In all cases, corpses are referred to the prosecution to verify the perpetrators’ narratives, but in the end, sentences against the perpetrators are eased.” He further explained that “the law provides for a maximum punishment, but do not refer to a minimum punishment; thus, judges make use of such looseness and decide the minimum punishment as they wish, and in the end, it is all about judicial moods based on unjust community culture.”

He further noted that “Islam puts conditions for taking penal measures, especially for the crime of adultery, whose occurrence can hardly be proved, in order to protect the society; the conditions include the availability of 4 credible eyewitnesses who collectively see the action, which is almost impossible, and if one of such eyewitnesses retreated from his testimony, he would be punished by stoning.” Judge Thabet also indicated that “over the Islamic history, only one of such incidents was recorded, when Al-Ghamidiya went to Prophet Mohammed, Allah’s prayers and peace upon him, and confessed killing. Eyewitnesses did not come to testify against her, but she wanted penal measures to be taken against herself. The Prophet did not order penal measures against her, rather he asked her to go back home and wait until she gives birth and breastfeeds her baby, and after that, he ordered a penal measure against her, which was stoning.” Concerning catching in a criminal action, Judge Thabet indicated that “easing the sentence is based on judicial applications rather than explicit legal provisions.” He further noted that “if a criminal is caught going to the scene of the crime to bring the tool of the crime, he/she is not considered to be caught in the criminal action, so one must be careful in applying legal procedures.”

The Religion’s Position

Concerning the religious foundations of judicial applications that ease the punishment against a man who kills his daughter, sister or wife because of the so-called family honor, Judge Said Abu Al-Jbeen, Member of the Sharia’ Appeal Court in Gaza, said that “the legislature enacted an easing article for a man who kills his sister or daughter, deriving its legitimate root from a story that happened in the era of Omar Ben Al-Khattab.” The story tells that a man came back home and found another man having a sexual relation with wife. He immediately took out his sword and cut off the man’s feet. The victim’s family came to Omar Ben Al-Khattab wanting to punish the murderer and asking for judgment. The man asked the family where their son’s feet were, and, upon discovering that they were located between his wife’s feet, he did not take any penal measure.

Judge Abu Al-Jbeen indicated that “this case was considered one of surprise and shock, on which the legal article relied, even though it was a form of willful killing.” He stressed that he does not permit killing, but “how can a killer be punished when he was unconscious and under the effect of a certain situation?” He compared it to divorce at the time of anger and shock or committing a crime while drunk. Judge Abu al-Jbeen pointed out that “the state of shock and eased punishment do not apply to a person who plans to kill a woman, has a space of time to do this or goes to bring a weapon. However, he stressed that “adulterers must be punished.”

Judge Abu al-Jbeen noted that “most community crimes in the present lack the elements of shock and emergency, so men rely on rumors, and even if women confessed, men would not have the right to punish her; it is the concerned law enforcement body that decides the kind and nature of punishment.” He emphasized that “no one has the right to assume the responsibility of applying the law,” indicating that “a female adulterer could be single, so the punishment is not killing her, but stoning.”

Concerning the law’s focus on men in such cases, without addressing cases in which women catch their husbands in adultery situations, Judge Abu Al-Jbeen said that “a man is reproached because of his wife, especially if the lineage of children is unknown, but the opposite is not deemed true.” “The psychological impact of such cases on a man is greater than that on a woman,” Judge Abu Al-Jubain added. He further pointed out that “marriage is null in cases of adultery, even if a man confesses that children who are born through adultery are his.”

Masculine Interpretation
Nevertheless, many women’s rights activists reject this idea and consider that a woman could be reproached because of her husband and the psychological impact on her is much greater. They believe that a child of an unknown lineage is more scandalous for a woman than for a man and that it is irrational to make judgments relying on a false community culture, especially the community’s law is set up according to such judgments.

Dunia Al-Amal Ismail, a feminist writer, said that “Abu Al-Jbeen looks at thing from a man’s perspective, and if we ask a female religious jurist, even though there are a few of such women, she will look at things differently.” She points out that “there are other different opinions” and that “there are religious jurists in Egypt and Syria, like Sharour, Janal Al-Banna and Farida Banati, and female religious jurists in Pakistan and Iran who have different opinions in this regard, and call for rereading and reinterpretation of religious texts, so it is not permitted to stick to a single religious jurist’s opinion and apply it.”

“If men look at such opinion from a masculine perspective, then women have the right to do the same, since the Qur’an has multiple meanings that can have various interpretations, but this fact is nor realized by religious jurists in the Gaza Strip, where opinions and judgments that conform to men’s interests overwhelm, in order not to undermine the privileges they have gained over history in the framework of rights and duties,” Ismail added.

She reiterated that “Abu Al-Jbeen’s interpretations are not acceptable, since a religious text must be looked at through its various implications,” stressing that “it is difficult to read religion according to tendencies, as there is a difference between purposed and objective reading; the latter sees all dimensions of the picture and do not prefer a dimension over another.”
“Abu Al-Jbaeen’s opinion is expected, as a religious jurist looks at things from his own perspective of life and such reading is legitimate for him, so why can’t it be legitimate to others from a different perspective of life?” Iamail added.

Female victims meet their fate in “shame” without being able to defend themselves or tell their stories, victims of a law that does not punish murderers but merely sets them free to prey upon further innocent women. Change remains the duty of those who aspire to live in a society ruled by a law that respects human rights, including the right to life, and where women live like princesses rather than prey.