Notes to Part IV

ι. In 1958, two years after Morocco gained its independence from France, the state established a Code of Personal Status (Mudawwanat al-ahwal al-shakhsiyaH), which reiterated and codified the (Maliki) tradition of family law jurisprudence.

2. The background to this new law includes prodigious advocacy efforts by women’s rights activists, and the political transition on the death of King Hassan II, who was succeeded by his son, Muhammad. Morocco has a vibrant women’s rights movement, although there are some notable differences in the interests and goals that various sectors pursue; some have taken the position that women’s rights can be assured and protected only through the replacement of the Mudawwana with a secular code enshrining liberal values, including the enforcement of the equality provisions of Morocco’s Constitution. Others have sought to expand women’s rights through the reform of Islamicjurisprudence, and to these ends the country has been a centre of some innovative efforts to reinterpret Qur'anic verses and hadith in a manner that would enhance the rights and equality of women. As a result of activism in the early 1990s, some modest reforms of the Aludawwana were instituted in 1993. But the accession to the throne by Muhammad, who, by many accounts is committed to bolder legal reforms, set the stage for the promulgation of the new law.

3. The Mudawwana does allow for the possibility of divorce on the grounds of ‘general harm’, but rules of evidence that would enable women to prove such harm are extremely difficult to fulfil, and judges tend to be sceptical of such charges and inclined to advocate reconciliation of the couple rather than prioritize relief for the wife.

4. In a comparative study of gender violence in ninety societies, four socio-cultural factors, taken together, were shown to be a strong predictor of spousal abuse in seventy- five societies. These factors are: (1) sexual economic inequality; (2) a pattern of using violence for conflict resolution; (3) male authority and decision-making in the home; and (4) divorce restrictions for women. The study found that the more dependent women are on men, the more vulnerable they are to violence (Levinson 1989).

5. Shari'a encompasses the ordinances derived from the Qur'an and hadith, and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence (fiqh∖ The two main methods are ijma' (consensus among Muslimjurists) and ijtihad (interpretation based on accepted rules of logic and religious texts).

6. The literature on women and Islam is vast. See Engineer 1992; el-Solh and Mabro 1994; Mernissi 1991; Moghissi 1999; and Yamani 1996.

7. These family relations, also known as ‘personal status’ issues, include marriage, divorce, custody and inheritance.

8. In the USA, women’s rights activists initially began addressing domestic violence by responding to the concrete, urgent needs of victims by mobilizing to set up shelters and other resources to protect and assist vulnerable women. Later, frustrated by the un­responsiveness of the judicial system to battered women’s situation, they turned towards a structural approach to criminalize domestic violence (Women, Law, and Development International 1996: 10).

9. Even in countries where a criminal justice approach has been adopted, for example the United States, there arc serious problems and limitations to relying so thoroughly on the state. If the state lacks legitimacy, as it does for communities and populations subject to discrimination, victims are unlikely to see the state as a source of relief and protection, and are disinclined to bring the police into their homes or turn in family members.

10. Domestic violence includes psychological as well as physical abuse. Psychological aspects of relevance here include behaviour intended to intimidate and persecute, such as threats of abandonment, divorce or abuse; confinement and surveillance; threats to take away custody of children; verbal aggression and humiliation.

11. For information about NGO activities and initiatives in the Arab world, see Abdel Hadi and Darwiche (n.d.).

12. See

13. The research for this study draws upon secondary sources, including reports and studies by organizations, research institutions and scholars who work on domestic violence. Three researchers, each working on a specific region (Bashar Tarabieh for the Middle East, Ngone Tine for sub-Saharan Africa and Patty Gossman for Asia), have surveyed the existing resources, and their research is incorporated in this study.

14. The few countries where domestic violence is not reported as ‘common’ include Cote d’Ivoire, Djibouti, Laos, Madagascar and the Maldives.

15. ‘Research on domestic violence is fairly new, and has been undertaken perhaps only in the last 25 years. An increasing number of studies are now being undertaken in the developing world’ (Davies 1994: 2).

16. Specific legal rules that epitomize and maintain gender inequality may include men’s right to marry up to four women while women are restricted to marriage to one man at a time; differences in right to divorce, custody and inheritance; and differences in legal competency. Nevertheless, women are not entirely disadvantaged by shari'a nor thoroughly unequal to men; women have legal and financial rights, including independence (at least in principle) to manage their own affairs. Women are recognized as equal to men before God, the critical issue being not gender biιt devotion and righteousness.

17. For a discussion of interpretations of Sura 4: 34 in medieval and modern Islamic thought, see Stowasser 1998.

18. This translation is from The Koran, trans. N.J. Dawood (NY: Penguin Books, 1974), p. 370. For significantly different translations of this verse, see Engineer 1992: 46; An- Na'im 1996: 97.

19. For a detailed discussion of these issues, see el-Alami 1992.

20. For a history of human rights, see Henkin 1991; Lauren 1998.

21. As of ³ April 2000, CEDAW had been ratified or acceded to by 165 states. Only seventeen states had not ratified or acceded to CEDAW but, of these, eleven have majority Muslim populations: Afghanistan, Bahrain, Iran, Mauritania, Oman, Qatar, Saudi Arabia, Somalia, Sudan, Syrian Arab Republic and the United Arab Emirates (UN 2000: 151-2). Since then, Saudi Arabia has signed.

22. For an example of the way the Beijing Platform has been utilized by activists who work on or in Muslim societies, see Afkharni et al. 1998.

23. The factors identified in the Beijing Platform of Action include: ‘social pressures, notably the shame of denouncing certain acts that have been perpetrated against women; women’s lack of access to legal information, aid or protection; the lack of laws that effectively prohibit violence against women; failure to reform existing laws; inadequate efforts on the part of authorities to promote awareness of and enforce existing laws; and the absence of educational and other means to address the causes and consequences of violence’ (Section D, para. 118).

24. Measures identified in the Beijing Platform of Action for governments to institute include: ‘condemn violence against women and refrain from invoking any custom, tradition or religious consideration to avoid their obligations... exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether these acts are perpetrated by the state or by private persons’ (Section D, para. 124).

25. The internet address for the WHO database on violence against women is

26. As of April 2000, only three countries with predominantly Muslim populations have signed the Protocol: Ghana, Senegal and Indonesia.

27. A third doctrine equating domestic violence with torture and cruel, inhuman and degrading treatment is being promoted by some feminist legal and human rights experts (see Copelon 1994).

28. See Chatterjee 1995; Halliday 1995; Howard 1990; Panikkar 1982; and Tibi 1990, I994∙

29. For a discussion of the implications of this on women, see Mohanty 1991.

30. See Ahmed 1992; Jeffrey and Basu 1998.

31. See Mani 1989; Walley 1997.

32. This comparative discussion of reservations to CEDAW draws on Connors 1996.

33. The reservations of Indonesia and Yemen pertain to Article 29(1) which allows reference of any dispute over the Convention to the International Court of Justice. Turkey’s reservations include Article 29(1) as well as various paragraphs of Articles 15 and 16 (Connors 1996: 354-5).

34. The provisions of Article 16 would equalize men’s and women’s rights on matters of entering into and dissolving marriages, custody, inheritance, right to work and control over family decisions and resources. This article also prohibits child marriage and requires states to establish and enforce a minimum age of marriage, and to make registration of marriage compulsory.

35. Note that the Convention on the Elimination of Racial Discrimination allows a vote (two-thirds) by other parties to declare a state’s reservations incompatible with the object of the Convention. CEDAW has no such provision.

36. The committee for CEDAW has persisted in seeking to minimize the impact of reservations based on shari'a. In 1994, the committee revised its guidelines for the pre­paration of country reports, recommending that states that have entered reservations should explain why they consider such reservations necessary, how they impact upon national law and policy, and how reservations to this Convention compare to reservations (or lack thereof) to other human rights treaties that guarantee similar rights.

37. While India and Nigeria have a constitution, Israel does not.

38. In Nigeria, the issue of domestic violence is bound up in cultural notions of mas­culine privilege, which conservative interpretations of shari'a reinforce (Bukurta 1998; Ezeah 1993; Olawale 1996). One study found that 31 per cent of women have been subjected to physical abuse at least once in their lives (Odujinrin 1993 cited in United Nations 2000: 154). A study sur∖^,eying rates of domestic violence between 1982 and 1988 found an upsurge in the practice, with a total of 1,220 women reporting battery over this period (Omorodion 1995). But it is unclear whether this indicates an increase in incidents of violence or women’s willingness to report them. A 1997 study found that domestic violence is common in all regions and spans all social classes and groups (Atinmo 1997).

39. For an example of a state’s attack on domestic critics of shari'a, see the discussion of the Egyptian government's treatment of the Arab Women’s Solidarity' Association in Mayer 1991: 180-1.

40. Among women beaten during pregnancy, a little more than half (56 per cent) reported being beaten less frequently during pregnancy than otherwise. For the remaining women, pregnancy did not protect them from violence: they were beaten equally often or more often while they were pregnant compared with when they were not pregnant’ (el- Zanaty 1995: 208).

41. See also Mir-Hosseini 2000.

42. Human Rights Commission of Pakistan (HRCP), as well as an informal study conducted by the Women’s Ministry, concluded that at least 80 per cent of all women in Pakistan are subjected to domestic violence (HRCP 1997: 130; Women’s Ministry [Pakistan] 1985). Amnesty International (1997) has reported that some 95 per cent of women are believed to be subjected to such violence. Amnesty' International (1998) has also reported findings by women’s groups in Pakistan that 70 per cent of women are subjected to violence in their homes.

43. Pakistan ranks near the bottom globally for almost every social indicator concerning the lives of women. Only 25 per cent of Pakistani women are literate, compared to 55 per cent of men. See Amnesty International 1998; World Bank, ‘Genderstats’ at

44. See generally Amnesty International t998.

45. Report of the World Conference of the United Nations Decade for Wmιen: Equality, Development and Peace, Copenhagen, 14-30 July 1980 (UN Publication, Sales no. E.80.IV.3 and Cor­rigendum), p. 30, cited in Y. Hassan 1995: 6.

46. For a detailed discussion of the qisas and diyat laws, see Human Rights Watch 1999b; Gottesman 1992.

47. According to Gottesman (1992: 454), the Federal Shariat Court has indicated that only crimes against the rights of God should be subject to tazir, not crimes against the rights of man. Distinguishing between the two categories of crimes involves determining whether the offender poses a threat to society at large.