Gaza’s Hidden Turmoil: Islamic Courts, Domestic Violence, and Women

Melanie Cook

I.  Introduction

Domestic violence is one of the most wide spread and least recognized human right abuses in the Middle East.[1]  Gaza is no exception.  Recent research by the Palestinian Women’s Information and Media Center revealed that 77.1% of women in the Gaza Strip are exposed to violence—most occurring within their own homes.[2]  Local awareness campaigns call out for human rights and gender equality in Gaza, but many turn a deaf ear—including the Palestinian Authority and Sharia  courts.[3]

Police hesitate to assist battered women in Gaza because of the strict separation of criminal and family matters.  According to Article 2 of Palestinian  Basic Law, “personal status shall be assumed by Sharia and religious courts in accordance with law.”[4]  Personal status laws encompass nearly all legal areas that most acutely affect women, namely marriage, divorce, and child custody.  Yet women subjected to domestic violence still remain ignored by state authorities.[5]  The local police misperceive domestic violence as a family matter, and refer battered women to religious courts.[6]  As a result, abused women become highly vulnerable to more harm due to the government’s refusal to issue protective orders.[7] 

Likewise, the Sharia courts encourage battered women to return to abusive partners.[8] The Sharia courts, motivated by Islam’s overarching principles of family unity and social harmony, perhaps unintentionally perpetuate domestic violence in Gaza.[9]  By adhering to deeply rooted cultural values, religious authorities expose Palestinian women to the possibility of more harm. 

Part II of this paper describes a basic overview of Sharia law, the Hanafi school and women within this religious context.  Part III examines directly the role of the qadi (judge) in Sharia courts and domestic violence.  Part IV proposes strategies to change the plight of women suffering domestic violence in Gaza. 

II.   Basic Overview of Sharia Law, Hanafi School and Women

            Islam teaches that God revealed His final law for humanity by Sharia.[10] Sharia refers to the source material of Islamic law, not the entire system of law itself.[11]  From a believer’s viewpoint, Sharia represents a higher law in accordance with God’s will.[12]  Sharia arises from two different religious sources—the Qur’an and the Sunnah.  Sunnah interpretations assist courts in the practical application of Qur’anic principles to family disputes. .[13]

The Qur’an contains “revelations from Allah,” serves as a basis for Islamic principles, and directs the creation of jurisprudence.[14]  The Qur’an contains approximately 6200 verses of revelations recorded by Muhammad over two decades beginning in the year 610 BCE.[15]  Faithful believers of Islam assert that the Qur’an is the literal word of God.[16]

While less than ten percent of the Qur’an involves law, its legal concepts carry a strong influence over family matters.[17]  For example, the Qur’an instructs “of all the things permissible, the most displeasing to Allah is divorce.’’[18]  This Islamic principle makes it difficult for women in abusive marriages to attain court intervention because Sharia law cannot religiously justify divorce.[19]  Furthermore, the confusing Qur’anic passage 4:34 supports a husband’s right to discipline his wife by beating her and thereby appears to justify domestic violence.[20]

The second source of Sharia law is the Sunnah.[21] The Sunnah is a compilation of “tradition reports” that recount the life of the Prophet.[22]  The Sunnah contains the words, actions, and personality portrayals of Muhammad, including descriptions of appropriate conduct for believers of Islam.[23]  During the ninth and tenth centuries, Muslim scholars compiled the writings into one authoritative work.[24]   The Sunnah contains large amounts of legal instruction, which, of course, must be consistent with the Qur’an when applied in Sharia courts.[25]

In Gaza, the law is practiced under the Hanafi norm, which is one of the four Sunni schools of law.[26]  The Hanafi school is the most widespread and widely applied in modern Sharia-based legislation.[27]  However, Hanafi policies are not gender neutral in family disputes.  Women face legal barriers when litigating child custody in Sharia courts.  More specifically, Hanafi procedures award fathers child custody when a woman seeks a divorce.  Suppose, for example, that a husband severely beats and disciplines his adolescent son.  The Gazan mother would be powerless to help her child, because under Hanafi religious practice, if she stays in the marriage, she will be beaten.  Likewise, if she leaves the marriage, her son would remain in the custody of his abusive father. -.[28]

Even if Hanafi rules do not dissuade a woman from divorcing, rules regarding money may strap her to the abusive marriage instead.[29]  For example, a woman may need to “buy her way out” of an abusive marriage, and without the financial means—she is trapped.[30]  Or the Sharia court may order the forfeiture of her dowry, leaving her penniless—once again she is trapped.[31]  Furthermore, a woman receives no equitable distribution of property under Hanafi norms.[32] Without any financial resources or property, a woman is in effect forced to remain with a violent partner.  Thus, these rules prevent a woman from seeking divorce for her own safety or the safety of her children.[33]

III. Role of Qadi and Domestic Violence

          The Palestinian Authority created the institution of the judge (qadi) to preside over Sharia courts. Qadis are attentive to the customs and norms of their communities, and receive their training often through a Hanafi school.[34]  While studying in these Sharia schools, they learn jurisprudence and theology, which ultimately influence the treatment of future family law cases.[35]  In addition to legal knowledge, qadis must have knowledge of court administration and community life.[36]  Above all, qadis must maintain high moral principles to guide legal decisions.[37]   

            When a potential qadi is screened to fill vacancies in a Sharia court, the applicant must demonstrate training in Sharia or theology, an ability to lead the community, the ability to be an advisor to the people, and the ability to guide them to peaceful solutions.[38]  Other qualities include the ability to be articulate and intervene in disputes firmly.[39]  Qadi’s are expected to be active in people’s daily life and deliver the message of Islam.[40]

One unique aspect of the role of qadi is the ability to use broad subjective discretion in family law matters.[41]  The qadi’s discretion is at times influenced by a sense of fairness that may yield a result contrary to the clear letter of law, but which the judge feels will better resolve the dispute.[42]  When conflict arises between the law and the qadi’s ideal about justice, he tries to find a solution by referring to a broader moral or legal principle in order to arrive at a socially desired result.[43] Despite a qadi’s personal desire to maintain family unity and social harmony, his broad discretion negatively affects battered women.  It is not uncommon for a qadi—despite receiving convincing evidence of domestic violence— to order the husband to reconcile with the battered wife before considering the granting of a divorce.[44]   This, of course, places the woman back in harm’s way.

To maintain social harmony, a qadi will judicially prefer and enforce the “sanctity of marriage” over extinguishing domestic brutality.[45]  This discretion presents problems for battered women because a qadi’s protective solution involves preserving community norms , not protecting the vulnerable individual.   Furthermore, community norms in Gaza are not gender-neutral. 

As discussed above, the Sharia law does not favor awarding women rights during courts proceedings.  Therefore, the Sharia court system—Hanafi law and qadi’s discretion— fails to adequately protect women of domestic violence because of 1) Hanafi punishment policies that legally strip women of their custody rights or financial rights when they seek court intervention, and 2) social pressure to reconcile violent relationships in order to maintain family unity in Islamic culture. As a result, Palestinian women do not have a legal system that condemns domestic violence in Gaza.      

IV. Changing the Plight of Women Suffering from Domestic Violence in Gaza

             In addition to the struggle women face in Sharia courts, there is a more general problem of women’s lack of awareness and Gaza’s inadequate resources to assist victims of domestic violence.  There are currently three safe houses for victims of gender based violence in the West Bank­— Ramallah, Nablus and Bethlehem­—but there are none in Gaza to date.[46]

(This space is limited by the number of words.  For the remaining portion of this article and footnotes, please contact Melanie Cook at 801-800-0170).