Promising Democracy, Imposing Theocracy:
Gender-Based Violence and the US War on Iraq
Part I. Towards Gender Apartheid in Iraq
One widely predicted outcome of the US overthrow of Iraq's Ba'ath government was the empowerment of Islamist forces. The Bush Administration denied this probability, choosing to repeat the hollow assurances of CIA informants such as Ahmed Chalabi, who promised that Saddam Hussein's successors would be secular and democratic. But MADRE and other women's organizations around the world warned that right–wing, religious extremists would be the greatest beneficiaries of a US invasion.
Indeed, the two most powerful Iraqi political parties to emerge under US occupation are the Dawa Party—which has called for an Islamist state in Iraq since the 1970s3—and the Supreme Council for Islamic Revolution in Iraq (SCIRI)—a name that hardly disguises the party's intent. These forces stepped into the political vacuum created by the overthrow of Saddam Hussein and immediately began using their new–found power to roll back women's rights. In fact, under US occupation, violence against women—including public beatings, abductions, rapes, and assassinations—has occurred within the context of a rapid erosion of women's legal rights and political participation. That trend was set in motion by the US–sponsored Iraqi government.
The Iraqi Governing Council Attacks Women's Rights
In summer 2003, L. Paul Bremer, the top administrator of the US occupation, assembled the Iraqi Governing Council (IGC), described by The Washington Post as, "a body that will cooperate with [the occupation] and support policies that are generally in line with US interests."4 The members of the IGC were hand–picked by Bremer, who retained final veto over the Council's decisions. Among those who Bremer appointed were Islamists who openly declared their intent to restrict women's rights.5 These same men are the architects of Iraq's civil war. One of the first acts of the US–installed IGC was a harbinger of things to come: the Council replaced Iraq's observance of International Women's Day on March 8 with a celebration of the birthday of the daughter of the Prophet Mohammed.
Then, on December 29, 2003, the IGC held a quasi–secret vote to replace Iraq's 1959 family law—among the most progressive in the region. The family law (also referred to as the personal status law) was enacted in 1959 by the left–leaning government of Abd Al Karim Qasim, who was later overthrown by the Ba'athists (with support from the United States). According to Huibin Amee Chew, "Aspects of the progressive family law persisted until the eve of the US invasion, when Iraq still remained exceptional in the region. Divorce cases were to be heard only in civil courts, polygamy was outlawed unless the first wife consented, and women divorcees had an equal right to custody over their children. Women's income was recognized as independent from their husbands'."6 The law also restricted child marriage and granted women and men equal shares of inheritance.7
Through Resolution 137, IGC planned to replace the 1959 law with arbitrary interpretations of Sharia, or religious law. In January 2004, MADRE warned that, "If upheld, Resolution 137 could give self–appointed religious clerics the authority to deny women the rights to education, employment, freedom of movement and travel, inheritance, and custody of their children. Forced early marriage, polygamy, compulsory religious dress, and wife beating could all be sanctioned under the Resolution."8 Iraqi women took to the streets in protest of Resolution 137. Facing mounting pressure from US Congress members and women's organizations, including MADRE, Bremer chose not to ratify the resolution.
Yet, despite the Bush Administration's rhetoric about liberating Iraq, occupation authorities consistently undermined Iraqi women's efforts to secure their human and legal rights. During the first year of US occupation, Iraqi women's organizations appealed directly to Bremer, demanding that the Coalition Provisional Authority (CPA) that he headed train and dispatch security guards to help prevent violence against women and that the CPA prosecute crimes against women. These demands were ignored.9 Under Bremer, the US refused to honor a series of demands by women's organizations, including calls to create a women's ministry; appoint women to the drafting committee of Iraq's interim constitution; guarantee that 40 percent of US appointees to Iraq's new government were women; pass laws codifying women's rights and criminalizing domestic violence; and uphold UN Security Council Resolution 1325, which mandates that women be included at all levels of decision–making in situations of peacemaking and post–war reconstruction.
"MADRE and other women's organizations around
the world warned that right-wing, religious extremists
would be the greatest beneficiaries of a US invasion."
Indeed, rather than support progressive and democratically minded Iraqis, including members of the women's movement, the US threw its weight behind Iraq's Shiite Islamists, calculating that these forces, long suppressed by Saddam Hussein, would cooperate with the occupation and deliver the stability needed for the US to implement its policies in Iraq.
The Battle over Iraq's Family Law
For Iraq's Islamists, as for religious fundamentalists in the United States and elsewhere, the subordination of women is a priority of the first magnitude—because it is both a microcosm and a precondition of the social order they wish to establish. For this reason, the very first civil law drafted by the IGC was Resolution 137, addressing women's rights within the family. Similarly, the first battle in the drafting of Iraq's constitution was over these same family or personal status laws. As Nathan J. Brown, Professor of Political Science and International Affairs at George Washington University, has pointed out, "There is no area of law that more broadly affects the lives of ordinary Iraqis."10
Those seeking to overturn Iraq's 1959 family law have tried to discredit the law by associating it with the government of Saddam Hussein. But Iraq's family law predates the Ba'ath regime: it came into being thanks to mass mobilizations by the Iraqi women's movement, which took to the streets at the end of the British colonial era demanding equal rights. The religious right in Iraq has reviled the 1959 law for being "secular" and spawning "deviant decisions that tore families apart"11 (a reference, perhaps, to women's rights to divorce and child custody enshrined in the law). In fact, the 1959 law is not secular. Much of it is rooted in Sharia, but the code represents a liberal, as opposed to reactionary, interpretation of Koranic law. The law also helped mediate against sectarianism by synthesizing Shiite and Sunni interpretations of Koranic law into one code that was applied to all citizens regardless of sect. Thus, though the 1959 law utilized Sharia to adjudicate personal and family matters, it did so in a secular manner.
Another less publicized, though perhaps more germane, Islamist grievance is that the 1959 law transferred power from Islamic clerics to the state. Prior to 1959, family law was interpreted by individual religious judges, giving clerics great influence over people's lives. The 1959 law removed that authority. It limited the role of judges to applying the law and ended clerics' control of personal status courts by absorbing these courts into a national judicial system under the authority of the state.12 The current move to overturn the 1959 law is as much a strategy to reassert the political power of right–wing clerics as it is a battle over the "values" enshrined in the law.
Iraq's Constitution: Islamists Appeased
Having failed in 2004 to revoke Iraq's family law through Resolution 137, the Islamists focused on drafting the country's new constitution in 2005. There, the United States handed the clerics their most important victory to date. Throughout summer 2005, the Bush Administration exerted tremendous pressure on Iraqi politicians to complete a draft of the constitution within three months (though the same process took more than 10 years in the United States). At the time, the Bush Administration was in desperate need of a public relations victory in Iraq: it needed a display for US audiences of the "democratic progress" that had replaced the "threat of weapons of mass destruction" as the raison d'être for attacking Iraq. The Administration was also afraid that failure to meet the timetable for drafting a constitution would trigger new elections in Iraq, which would have likely produced a less compliant government.
In summer 2005, with the clock ticking, US Ambassador Zalmay Khalilzad inserted himself heavily into negotiations over the drafting of the constitution. His intervention was worrying: this was the man who had helped negotiate Afghanistan's post–Taliban constitution, which—despite all of Bush's talk about "liberating" Afghan women—proclaims the country to be an Islamic republic in which no law can contradict Islam. As in Afghanistan, Khalilzad supported the Islamist factions on the Iraqi constitutional drafting committee. The result was a new constitution that declared Islam to be the official religion of the state and a fundamental source of legislation.
Muslim feminist scholars point out that the problem is not intrinsic to Islam itself. Islamic jurisprudence, or Sharia, is not a predetermined list of rules, but an intellectual tradition of interpreting religious texts. Islamic holy books can be interpreted to support relatively progressive legislation affecting women's rights, as in Morocco, where forced marriages for women are banned on the basis of a Koranic verse.13 But Sharia can also be used to justify violence against women, as in northern Nigeria, where women may be publicly stoned to death for having sex outside of marriage.14 The paramount question, as in every legal system, is how and by whom the law is interpreted and applied.
In the case of Iraq, "…Mr. Khalilzad had backed language that would have given clerics sole authority in settling marriage and family disputes…and allowed clerics to have a hand in interpreting the constitution."15 This news was reported by The New York Times under the innocuous–sounding headline, "Iraqi Talks Move Ahead on Some Issues." In fact, Khalilzad's "cooperation through cooptation" approach to engaging with Islamists was widely lauded by mainstream media, although the tactic is essentially one of appeasement. In Iraq, as in Afghanistan, it resulted in a constitution that traded women's rights for cooperation from Islamist political parties.
Legalizing Violence against Women
That women's rights were deemed expendable by the US is obvious from a quick reading of Iraq's US brokered constitution. Described by US Vice President Dick Cheney as "progressive and democratic,"16 Iraq's new constitution effectively legalizes multiple forms of violence against women.
Article 2, Section A: "No law that contradicts the established provisions of Islam may be established."
Problem: This article can be used to negate guarantees of women's rights enshrined elsewhere in the constitution17 and to sanction domestic violence and other human rights violations against women. The phrase "established provisions of Islam" does not necessarily refer to a codified canon of law, but to dominant interpretations of religious texts, which are made dominant through an assertion of political power. In Iraq today, those who have gained a monopoly on interpreting and applying "Islam" may define human rights abuses against women, such as forced marriage or marital rape, as "established provisions" of the religion.
Article 36: Freedom of expression, freedom of press, and freedoms of assembly and peaceful protest are conditioned on "public order and morality."
Problem: This article can be used to suppress political opposition to a government dominated by Islamists, outlaw social and political dissent, and quash the circulation of competing interpretations of Islam. "Morality" is always a problematic basis for law. When legislators and judges believe it is immoral for women to choose their spouses, control their fertility, or work outside the home, "morality" becomes an arbitrary justification for human rights violations.
Article 39: "Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice."
Problem: The article calls for marriage, divorce, alimony, inheritance, and other personal status issues to be adjudicated by religious courts, which consistently discriminate against women. For example, in religious courts, a woman's legal testimony is worth half that of a man's. Moreover, women will not be "free in their adherence" to a particular set of laws: in most families, the decision of which court to use will be made by men. Women will be particularly disadvantaged in cases of conflict with male family members, such as divorce. Because most interpretations of Sharia pronounce one set of rights for men and another for women, Article 39 sets the stage for separate and unequal laws to be applied on the basis of sex.
Article 89: "The Supreme Judiciary Council will [nominate] the head and members of the Supreme Federal Court." And Article 90: "The Supreme Federal Court will be made up of a number of judges and experts in Sharia and law."
Problem: Nothing in the constitution mandates that the members of the Supreme Judiciary Council be elected. Indeed, they appear to be accountable to no one. Yet, Council members will effectively control the laws by nominating the "experts in Sharia" (presumably clerics) empowered to veto legislation, rescind existing laws (such as the 1959 family law), and determine the constitutionality of new laws governing marriage, divorce, women's inheritance and property rights, and more. These articles portend an Iranian–style theocratic oversight body, empowered to legalize human rights violations against women.
3Nir Rosen, "Anatomy of a Civil War," Boston Review, Nov./Dec. 2006.
4The Washington Post, July 11, 2003, quoted in Lee, Thomas, Battlebabble: Selling War in America. Monroe, ME: Common Courage Press, 2005. The same article elucidates the purpose of the IGC: "…a more prominent role in postwar governance is intended to place Iraqis at the receiving end of some of the popular discontent that has been directed at the occupation administration."
5Bremer's Islamist appointees include: Dr. Ebrahim Jafari Al Eshaiker (Dawa Party); Abdul Aziz al–Hakim (SCIRI); Abdul Karim Al Muhammadawi (Iraqi Party of God in Al Amara); Dr. Mohsen Abdul Hameed (Iraqi Islamic Party); and Dr. Seyyid Muhammed Bahr ul–Uloom, http://iraqcoalition.org (accessed Dec. 15, 2006).
6Huibin Amee Chew, "Occupation is Not (Women's) Liberation Part I," ZNet, March 24, 2005, http://www.zmag.org/content/ showarticle.cfm?ItemID=7518 (accessed Dec. 13, 2006).
7Noga Efrati, "Negotiating Rights in Iraq: Women and the Personal Status Law," Middle East Journal 59(4): 577–595.
8MADRE press release, Jan. 30, 2004, http://www.madre.org/press/pr/resolution137.html (accessed Feb. 21, 2007).
9Yanar Mohammed, "Iraq: Letter to Paul Bremer from Yanar Mohammed Concerning the Security of Iraqi Women," Christian Peacemaker Teams, Sep. 3, 2003, http://www.cpt.org/archives/2003/sep03/0001.html (accessed Dec. 13, 2006).
10Nathan Brown, "Debating Islam in Post–Baathist Iraq," Carnegie Endowment for International Peace Policy Outlook, March 2005.
11Ibid.
12Ibid.
13BBC News, "Morocco Boosts Women's Rights," Oct. 11, 2003, http://news.bbc.co.uk/go/pr/fr/–/1/hi/world/africa/3183248.stm (accessed Jan. 29, 2007).
14Imama Ayesha, "Working within Nigeria's Sharia Courts," Human Rights Dialogue 10(2): Fall 2003.
15Dexter Filkins, "Iraqi Talks Move Ahead on Some Issues," The New York Times, Aug. 21, 2005.
16Dick Cheney, "Vice President's Remarks at a Luncheon for Arizona Victory 2006," Aug. 15, 2006, www.whitehouse.gov/news/releases/2006/08/20060815–2.html (accessed Jan. 29, 2007).
17For example, Article 14 states: "Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status."