In an unnamed location in Jordan, two brothers arrived at the door of a tribal chieftain to retrieve their sister. She had sought refuge in the local leader’s house after falling in love with a man and leaving home.
The chieftain let her go after the brothers swore not to harm her. But when she got home, the two brothers poisoned her, watched her die and then claimed she committed suicide.
According to the Jordan Times, the brothers were given 7.5- and 10-year prison sentences for the gruesome deed.
The brothers got off relatively easy because of Article 99 of Penal Code No. 16 of 1960, which grants judges the ability to dramatically reduce sentences if the case has “extenuating circumstances.”
The Palestinians in the West Bank inherited Article 99, as well as the bulk of their penal code, from their former rulers, the Hashemite Kingdom of Jordan.
Despite a series of reforms to the Palestinian legal code since 2011 aimed at preventing so-called “honor killings,” the law has continued to allow men who murder, assault and rape women in the Palestinian territories to receive significantly reduced sentences.
Over the past half year, a petition initiated by Palestinian women’s rights groups has received over 12,000 signatures asking Palestinian Authority President Mahmoud Abbas to do away with the measure, which allows judges to use their discretion in cases that have “extenuating circumstances.”
Yet while the law’s effect on women is well-known and well-documented, neither canceling, freezing nor amending it is in the cards.
According to a legal adviser for the Palestinian Authority’s Women’s Affairs Ministry, the law is necessary to ensure justice in some cases.
Rather than be amended or repealed, the adviser said, what must be dealt with are the judges who use it to allow men to practically get away with murder.
A law that incentivizes ‘honor killings’
In the case of the brothers, as in the majority of other such cases in Jordan and the Palestinian territories, the “extenuating circumstances” the judges cited to lighten the sentences were that the family dropped charges against the defendants — who are part of the family — saying it was an honor killing.
Once the charges are dropped — in Palestinian legal parlance this is called “dropping the personal right [of the victim]” — the judge can use Article 99 to lighten the sentence.
Palestinian women’s rights advocates have argued the law is a two-pronged dagger: it incentivizes murder by minimizing punishment and also incentivizes murderers of women to claim they killed for their family’s honor.
“We have documented cases where someone was killed over inheritance or financial issues but it was documented as an honor killing,” Victoria Shukri, director of the Women’s Courts Project in TAM, a women’s rights organization, told The Times of Israel in a recent telephone interview.
A 2014 United Nations Office of the High Commissioner for Human Rights report found that the dropping of personal rights is most often the “extenuating circumstance” judges cite before granting clemency to abusers or murderers of women.
The report, written by Palestinian Judge Ahmad al-Ashqar, noted: “Legislation in place contributes, to a large extent, to building a social awareness that killing under the pretext of honor is acceptable. Legal justifications and legal processes known as pardoning excuses and extenuating excesses and reasons contribute to that, as the majority of perpetrators benefit from these excuses based on Article 99.”
According to Shukri, 95% of women murdered in the Palestinian territories have their personal rights waived by their own families.
95% of women murdered in the Palestinian territories have their personal rights waived by their own families
Shukri first reported this statistic to the Ma’an News Agency in March.
In 2013, 26 Palestinian women were killed by relatives. That was double the number the previous year. This 100% increase prompted outrage, and led Abbas to make changes in the legal code that did away with three separate laws that clearly gave clemency in cases of “honor killings.”
But both the 2014 UN report and activists have noted that it is Article 99 that has historically been used to grant clemency to murderers of women, rather than the laws amended by Abbas.
In Gaza, which Abbas does not control, the culprit against women is British Penal Ordinance No. 74 of 1936, which allows judges to accept the “excuse” of damage being caused to one’s honor.
Abbas’s reforms were merely cosmetic and did not tackle the root of the problem, activists argue.
TAM said that a total of 18 women were killed in 2016. According to the Palestinian Public Prosecutor’s Office, nine women were killed by relatives that year, Ma’an reported.
Since November, 2016, a petition by TAM calling for Abbas to “restrict” Article 99 until a “fair” penal code can be written has garnered over 12,000 signatures.
Only Abbas can amend the Palestinian legal code through presidential decree, as the Palestinian parliament has been defunct since 2007.
The petition also calls for ending the practice of dropping the personal right in cases in which women were murdered. Additionally, the petition also calls for reform in the police and judiciary system.
PA legal adviser: Problem is judges who sympathize with men
Soona Nassar, the legal adviser to the PA Women’s Affairs Minister Haifa al-Agha, argued in an interview with The Times of Israel that the problem was not Article 99, per se, but rather how it is utilized by judges who “sympathize” with men.
She highlighted the fact that the law applies equally to both men and women, but “women are more damaged by it because they face more violence.”
Article 99 leaves power in the hands of the judge to decide if there were “extenuating circumstances” of sufficient weight as to lighten the punishment.
The law applies equally to both men and women, but ‘women are more damaged by it because they face more violence’
And when most of the judges are men who sympathize with other men, this leads to a harmful bias against women, she argued.
“There are many judges who sympathize with men due to their thoughts, culture or upbringing, and often throw blame on the woman, even up to the point where there is an attack on her,” Nassar said.
“The problem is that there is no restriction on the reasons for lightening a punishment in the law. And at the same time, there is the discretionary power of the judge to determine the punishment,” she added.
However, she argued that the law cannot be frozen or canceled because it gives women the right to decide for themselves whether they want their own family members imprisoned.
“If a wife if is beaten by her husband, it is her right to decide whether she wants to continue with the judicial measures, or drop her personal right,” she argued.
A female victim, she said, might prefer to “preserve the family structure” rather than see her family member behind bars for longer.
When asked why families should have the ability to drop the personal right of a murder victim, she explained that such crimes within a family pit relatives against each other, and the law exists to give relatives the right not to pursue criminal charges against each other.
“If a woman [who was murdered by her husband] is married to her cousin, then who will raise the complaint in court? The kids against their father, or her father against his nephew, or her brother against his cousin?” she asked.
She also noted that the court uses Article 99 to take into consideration whether a person who committed a crime was under any special pressure, if it was his first crime, or if he was very young.
Nassar said what can be done at best is reform the legal code in a way that would limit judges’ discretionary power.
So, for example, in cases of felonies or misdemeanors that carry a range of 3-15 years’ imprisonment, “what we can do is limit the the discretionary authority of judges by changing the range so it cannot be less than 5-7 years for this or that crime.”
Both Nassar and Shukri, the CEO of TAM, said effective change will come about by educating judges to avoid gender bias.
Shukri said hers and a few other women’s rights organizations offer educational workshops to Palestinian male judges who sit in courts that preside over cases dealing with women’s issues.
Change on the horizon in Jordan
In the case of the Jordanian brothers who poisoned their sister and got off relatively easy, the original sentence was overturned in March by the country’s top court.
Cassation Court Justice Mohammad Tarawneh doubled their jail terms to 15 and 20 years.
“We want to send a strong message to the people that killing women in the name of family honor will no longer be tolerated by our court and we chose Mother’s Day to send this message,” he said, according to the Jordanian Times.
And in a statement that Palestinian activists like Shukri are still hoping to hear from Palestinian courts, Tarawneh took direct aim at the loophole provided by Article 99.
“This will be the real deterrent to such murders because the exonerating factor will not be regarded by the Cassation Court anymore,” Tarawneh said.