Women in the Arab World: Between Violence and Impunity --
The Algerian Case
by Hélène CARVALLO
Introduction 3
The El Haïcha Case 3
Algeria, Through a History of Violence 4
I- Personal Status, Shari’āh and Violence Against Women -- From a ‘Culture’ of Domination (Patriarchy) 5
I- A- Neo-Patriarchal States and the Institutionalization of the Inferiority of Women: The main source of Violence Against Women 5
I- A- 1- A Paradox in the Domestic Arena: Adults in the Public Sphere & Minors in the Household 5
I- A- 2- Violations of International Obligations based on the Shari’āh 6
I- A- 3- Violence Against Women in a Broader Context: Personal Status & Religion in the Mediterranean World 8
I- B- Inferiority of Women and Legitimation of Violence Against Women, a hand in hand relationship 10
I- B- 1- Nexus between Legal Minority and Violence Against Women in the Household 10
I- B- 2- Sexual Violence, Male Impunity and Women’s Health 10
II- … toward a Political Instrumentalization -- Violence Against Women in the Algerian Conflict 11
II- A- From Justification to Instrumentalization of Violence Against Women: ‘The Widespread Rape And Sexual Enslavement Of Women’ 11
II- A- 1- Violence Against Women as a Weapon of War 11
II- A- 2- Shadows on Responsibility: Islamic groups or the Military? 12
II- B- Lack of Accountability for the Algerian Bloody Years 13
II- B- 1- Difficulty of Prosecution 13
II- B- 2- The Amnesty Law, Institutionalization of Impunity 14
III- Arab Women in the midst of the Struggle Against Violence and for Justice 15
III- A- For Memory and Justice 15
III- A- 1- Criminal Accountability in the Algerian War 15
III- A- 2- Implementation of a Truth Commission 17
III- B- Reform of Discriminatory Laws Affecting Women 17
III- B- 1- Reform of the Family Code 17
III- B- 2- Withdrawal of all Reservations to CEDAW 19
III- C- Religious Reforms 19
III- C- 1- Religion and Politics: Towards a laïcité à la française? 20
III- C- 2- Islamic Feminism and the Reinterpretation of the Shari’āh 20
Concluding Notes: Gender-Apartheid in the Arab World and the Continuum of Violence 21
Introduction
The El Haïcha Case
“In July 2001, working women in the Saharan city Hassi Messaoud were attacked by a mob of three-hundred men following a sermon given in the local mosque by Islamist imām Amar Taleb”.[1]
This case gives a good insight into the degree and nature of the violence experienced by women in the Arab world. Algeria, like all the Arab states of North Africa and the Middle East, is bound to guarantee equality between men and women, both by its Constitution[2] and through Algeria’s international ratification of the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’).[3] Nevertheless, the scope of this legal obligation is limited in two ways, first by reservations to the treaty, second by a family status that institutionalizes discrimination against women. Both limitations are grounded in the Shari’āh.
After the call for a “jihād against the Evil” and to “chase the women fornicators out of the area”, ordinary citizens started to attack working women in the district of El Haïcha, in Hassi Messaoud, Algeria. Originally from the Northern and Western areas of the country, the working women had come to Hassi Messaoud, one of the major oil cities of the South to work for foreign companies as cleaners, secretaries, cooks, etc.[4] Most of them were living without the presence of a man or a male guardian –wali—, prescribed in the Mālikī’ school of Sunni Islam. In the district, around thirty women were assaulted, raped, stoned, stabbed and sometimes buried alive. The violence soon expanded to neighboring areas.
Only three of the victims brought action against the offenders. Though today the case is pending, in the earlier stage of the proceedings, three of the aggressors were acquitted and three condemned – the twenty-three remaining being only condemned in default, because the police never caught them.
In this paper, I will argue that the position of women in Algeria is in no way exclusive to the Algerian context, but rather is symptomatic of the larger Arab-Muslim context. The thesis that I will develop in the following paper, through the representative example of Algeria, is that women in the Arab World experience a continuum of violence, from a culture of domination grounded in patriarchy, argued through the Shari’āh and legitimized in the positive law, to a political instrumentalization of the violence.
Algeria, Through a History of Violence
Algeria is sadly famous for its history of violence and trouble. After more than one century of French colonization, the Algerian people started a long and violent process of decolonization in 1954.[5] It ended with the 1962 Accords d’Evian and the arrival in power of the National Liberation Front (‘Front de Libération Nationale’, ‘FLN’). The FLN was to remain in power as a unique party until important youth riots resulted in civil rebellions and brought an opening to multi-partism and democracy in 1989. But, in 1991, as the first free legislative elections were to bring victory to the Islamic group FIS (‘Front Islamique du Salut’[6]), the FLN proclaimed a state of siege, injailed the two founders of the FIS, Abassi Madani and Ali Belhadj,[7] interrupted the electoral process and finally proclaimed the state of emergency, that is still in force today. This marked the beginning of the ‘Algerian Bloody War’.[8]
The Algerian war started in 1991 with a practice of scattered violence against the civil population. After 1994, the country entered into a period of large-scale massacres. From 1991 to 2004, between 100,000 and 200,000 people were killed, more than 20,000 disappeared, tens of thousands were tortured, more than 1.5 million people were internally displaced and half a million left the country.
Women, both Muslim and non-Muslim (only 5,000 among the 33 million people are reported to be non-Muslim), were particularly affected by the violence. They were raped, kidnapped and murdered, and used as booty or weapon of war. However, the violence against women did not start with the civil war. On the contrary, women were victims of hateful discourse already as early as in the 1970s, as evidenced by the adoption of the very discriminatory Family Code of 1984, and were even subject to physical violence, as it was evidenced by reports from other parts of the country such as Ouargla, another oil city of the South, in 1989. Feminists such as Khaleda Messaoudi were already calling for a fight against the ‘FIS program of sexual apartheid in Algeria’.[9]
I- Personal Status, Shari’āh and Violence Against Women -- From a ‘Culture’ of Domination (Patriarchy)
“Among all the regions of the world, the region of Arab-Muslim countries is the only region that does not formally recognize the equality between men and women.”[10]
Scholars such as Hisham Sharabi and Fatima Mernissi have used the term ‘Neo-Patriarchy’ to characterize Arab states. Either aligning themselves with the ex-colonial powers (like in Saudi Arabia) or opposing them in order to justify repression (like in Syria), those patriarchal structures have not been truly modernized but only reshaped and preserved in modernized forms, “void of the great democratic advances deemed crucial to achieving genuine societal transformations.”[11]
I- A- Neo-Patriarchal States and the Institutionalization of the Inferiority of Women: The main source of Violence Against Women
I- A- 1- A Paradox in the Domestic Arena: Adults in the Public Sphere & Minors in the Household
According to Wassyla Tamzali, “gender equality in Maghreb evolves in the right direction and faster than sexual equality and the sexual morality on which gender is grounded”. Indeed, there is a stronger participation of Maghrebi women into the economic, cultural and political life. “(…) But the sexual morality, characterized by the superiority of the male sex (…) keeps on determining the condition of women in so called Arab-Muslim societies.”[12] In Algeria, this leads to absurd situations such as a female minister being unable to get out of the country without her husband’s authorization.
Indeed, in law if not in reality, women participate in the public arena and enjoy economic as well as political rights. They are entitled –and often are—ministers (5 ministers and secretaries of state), judges (2 presiding judges and 137 examining judges, out of a total of 404 judges), members of the People’s National Assembly (25 out of 389 in 2007), professors, etc. They can vote and be elected. Furthermore, they comprise a greater and greater portion of the labor force. To sum up, the law does not restrict women to the household.[13]
Women’s political rights are grounded in the 1996 Constitution itself. Declaring Islam to be the state religion, it also states that the Algerians are equal before the law, with no discrimination regarding “bind, race, sex, opinion or any other personal or social condition or circumstance” (Article 29). Furthermore, Algeria has ratified a number of international conventions proclaiming political gender equality, such as the African Charter on Human and People’s Rights, the Maputo Protocol on Women’s Rights in Africa, signed in 2003 and in the process of ratification, and the Convention on the Political Rights of Women ratified with no reservation in 2004.
However, in spite of these political rights, Arab women remain minors in the household. The Algerian Family Code, promulgated in 1984,[14] sanctioned the legal inferiority of women within the family. In the event of legal lacunae, the Algerian Family Code referred back to the provisions of the Shari’āh. In 2005, after a large campaign, “20 years Barakat”, the Family Code received some amendments[15] --such as the withdrawal of the obligation for the wife to obey her husband-- but they remained minimal and did not abrogate the superiority of men in matters of marriage, divorce and access to inheritance.
Indeed, marriage remains invalid without the consent of the wali, the female’s guardian,[16] and a dowry (Article 9). Polygamy –the ability for a man to have up to four wives-- is still allowed, after the verification by a judge of the consent of the former wives and the aptitude of the husband to treat his wives equally (Article 8). Women, who could only divorce by means of compensation (khl’a[17]) before the reform, are now entitled to more legal options (including divorce for persistent disagreement with the husband) but still not on equal grounds with men. Repudiation of a wife is still allowed and the husband has no legal obligation to guarantee housing to his ex-wife, who is destined to homelessness and in many case joins the crowd of women living in the streets of Algerian cities.
Furthermore, the law is interpreted in a manner that increases women’s submission to men. For instance, Article 7bis of the law requires the future spouses to provide the public officer (‘officier d’état civil’) with a health certificate, in order for each party to be aware of possible “factors of risk” before the wedding. But de facto, the officers require this certificate to attest to the virginity of the bride. The public officers justify their decisions by saying that virginity is a security against disease. They also sometimes rely on a mysterious study by the Minister of Interior that supposedly attested that the absence of virginity was one of the main grounds for divorce, and thus that asking for a certificate of virginity constituted a legitimate requirement.[18]
I- A- 2- Violations of International Obligations based on the Shari’āh
Today, all Arab-Muslim states, except Qatar and the Palestinian Authority, have ratified the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’). Algeria ratified CEDAW in 1996, just after the Beijing Conference that took place in 1995 and came to reinforce the struggle for achieving gender equality and empowerment of women.
Adopted in 1979, CEDAW sanctions the equality of men and women in all aspects of society, including the family, and calls for the ending of all forms of discrimination. Article 1 qualifies discrimination against women as:
“Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.
State parties have the legal obligation to assure equality and fight discrimination in practice, i.e. through the introduction of legislation and all appropriate measures needed (Article 2).
Before 1992, CEDAW did not specifically refer to violence against women. But the Committee of Experts considered violence against women to constitute a form of discrimination against women and thus, in 1992, included it in the scope of the Convention (General Recommendation #19). As a consequence, states parties to CEDAW now have the legal obligation to prevent, investigate, prosecute and punish all manifestations of violence against women, such as defined in the U.N. Vienna Declaration on the Elimination of Violence Against Women of 1993:
“Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty occurring in public or in private life”.[19]