Sharia Law and Women’s Rights in Iraq

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by Dr. Katrin Michael
May 2009
Under sharia, or Islamic law, women are considered inferior to men and have less rights and duties. With regard to blood-money, evidence, and inheritance, a woman is counted as half a man. This also holds true with regard to marriage and divorce. Woman’s position is less advantageous than that of man. Today I will outline for you a number of cultural and legal challenges that women in Iraq are currently facing.In Iraq, personal status law comes from the Hanafi and Jaafari schools of sharia. Article 102 of the personal status law comes from this tradition. It states that the guardian of a minor is first the father, and then a relative of the father.

Article 17 states that a Muslim male may marry a Christian or Jew, as People of the Book, but a Muslim female is not allowed to marry a non-Muslim. Article 111 of the penal code permits a husband to discipline his wife, meaning the husband is permitted to beat his wife. The Islamic context for this last provision is described in the Quran in Surah 4, verse 34.

Abdullah Yusuf Ali version of Quran Surah 4, verse 34 “Men are the protectors and maintainers of women, because God has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband’s) absence what God would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if they return to obedience, seek not against them Means (of annoyance): For God is Most High, great (above you all).” 

ٱلرِّجَالُ قَوَّٰمُونَ عَلَى ٱلنِّسَآءِ بِمَا فَضَّلَ ٱللَّهُ بَعْضَهُمْ عَلَىٰ بَعْضٍۢ وَبِمَآ أَنفَقُوا۟ مِنْ أَمْوَٰلِهِمْ ۚ فَٱلصَّٰلِحَٰتُ قَٰنِتَٰتٌ حَٰفِظَٰتٌۭ لِّلْغَيْبِ بِمَا حَفِظَ ٱللَّهُ ۚ وَٱلَّٰتِى تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ وَٱهْجُرُوهُنَّ فِى ٱلْمَضَاجِعِ وَٱضْرِبُوهُنَّ ۖ فَإِنْ أَطَعْنَكُمْ فَلَا تَبْغُوا۟ عَلَيْهِنَّ سَبِيلًا ۗ إِنَّ ٱللَّهَ كَانَ عَلِيًّۭا كَبِيرًۭا

 


After April 9, 2003, the status of the personal status law was again called into question by members of the Iraqi Governing Council (IGC). On December 29, 2003 Abdul Aziz al-Hakim, president of the Supreme Council of the Islamic Revolution in Iraq (CIRI), proposed Resolution 137. Members of the Iraqi Governing Council who were present at that session passed it without even conducting a debate. If signed into law, Resolution 137 would grant enormous power to Muslim clerics to interpret matters concerning family, marriage, child custody and inheritance under various interpretations of sharia law, according to sect. Fortunately, after intense pressure was applied, this resolution was not signed into law.

The personal status law does not mention the temporary marriage arrangement called by Sunnis Alzwaj Muta’a and by Shi’ah Alzwaj Mesyar. This marriage is a temporary contract drawn up between a man and a woman in which the wife will be paid a designated sum money for this marriage for certain time. This kind of arrangement has become more frequent in Iraq.

Another issue that is a problem in Iraq, and in other countries as well, is female genital mutilation (FGM). A German nongovernmental organization called WADI, which has been based in Iraq for more than a decade, presented the first statistical evidence in Iraq of the existence of female circumcision. Of the 1,554 women and girls age 10 years or older that were interviewed by WADI’s local medical team, 907, or more than 60 percent, had this operation. The practice of female circumcision is known to exist throughout the Middle East, particularly in Northern Saudi Arabia, Southern Jordan and Iraq. There is evidence that it is also practiced in Iran and Southern Turkey.

Anti-FGM campaigners point out that FGM crosses religious and ethnic boundaries. Clerics in Sulaymaniyah have offered their opinions on the subject. Islamic scholars have complex views on the phenomenon depending on which Islamic school they belong to. The Shafii and Hanbali schools of thought are the most predominant in Iraq. Some Islamic clerics of the Shafii school, to which many Kurds subscribe, believe that circumcision is obligatory for both men and women. Clerics from the Hanbali school state that circumcision is obligatory only for men. In fact, in 2002, Ahmed Gaznei and other well known Iraqi clerics issued a religious edict, or fatwa, supporting the Hanbali practice. Gaznei has appeared on Iraqi Television several times to preach against FGM.In parts of Kurdistan, however, information is slow to filter through the population. Women are still thought to be promiscuous if they are uncircumcised, and there are people in some areas who say that food prepared by an uncircumcised woman is unclean.

Women cannot travel freely except in the company of a male relative as her guardian, called a “mahram.” Women are prohibited by Article 25 of the personal status law from traveling outside Iraq without being accompanied either by her husband or by a male guardian such as her father or brother.The lessons learned from the mobilization of advocates for female rights illustrate that:

1. Women’s rights should be above all traditions and customs. Any item that violates women’s rights under the UN or international treaties and conventions should be reported and pursued by the United Nations.2. Women should not face these challenges alone. Under international human rights law, the state has an obligation not only to ensure that its agents and officials do not commit violence against women, but also to protect women from violence committed by private individuals and bodies (sometimes referred to as non-state actors), including members of their own families and communities.3. An independent high commission in Iraq that focuses on women’s issues should be established and have a direct connection to the president of Iraq.  

To improve the situation of women in Iraq, I propose the following recommendations:1. We need to develop ways for all sects, ethnicities, and sexes to live together peacefully. An important step for this to be achieved is to ensure that women have a substantial role in the government. Women should be an integral part of the decision-making process for Iraqi government policy.Peace movements should be more active in Iraq and they should use the Iraqi media as a tool to spread their messages. One of these messages should be promoting the end to any tradition that accepts violence against women. The work of women peace builders must be acknowledged and expanded in Iraq.2. The Iraqi government has a Ministry of Women’s Affairs. One of the key responsibilities of this ministry should be to facilitate an increased presence of UN and local law enforcement peacekeeping forces throughout all of Iraq. The ministry should also provide humanitarian assistance to Iraqi women and children, especially to those who are internally displaced or are refugees outside Iraq. In addition, job opportunities for women must be a priority for this ministry. The challenges facing widows and orphans should also be addressed by the ministry. At this time however this ministry does not even have a budget.3. In order to improve women’s social status, we must work to transform the customs and habits of Iraqi society away from religious standards that are incompatible with women’s rights.4. We need to respect all religious traditions and at the same time we have to oppose any attempt to create a theocracy that tramples on individual human rights. Women should have equality of rights and duties under the constitution, civil law, and personal status law. Women need to have the right to select whom she marries and polygamy also needs to end. Women should also be protected from honor killings and from being coerced into marriage before reaching adulthood.5. We need the support of the international community, including human rights organizations, to promote amendments to the Iraqi constitution that take into account women’s issues. The constitution needs amendments especially when it comes to personal status law. International bodies such as the UN, specifically UNIFEM, and the European Union should be directly involved with high level experts, Iraqi women and lawyers in monitoring the development and enforcement of these amendments.6. International meetings on human rights, women’s issues and sharia should be held in northern Iraq, Baghdad and/or Kurdistan.7. There is also a need to establish an NGO that takes care of orphans, that registers them for school and provides or finds them shelter and other services.8. We need programs for single mothers and divorced women that educate them about their rights, help them find employment, and affirm their worth as human beings regardless of their unmarried status.9. The schools of Iraq also need programs to educate both staff and students about human rights, including the rights of women as expounded in the relevant international documents, as distinguished from regulations found in sharia.