ATTACHMENT_J13_Enhanced_Palestinian_Justice_Project _Gender_Analysis _February_13 _2013_.pdf

RFP -294-13-000005

ATTACHMENT J13

Enhanced Palestinian Justice Project, Gender Analysis, February 13, 2013

I. Overview

This document outlines obstacles to gender equality in the justice sector, their impact on the proposed Rule of Law Project, and proposed interventions to address gender gaps.

The new Rule of Law project aims to strengthen Palestinian Justice Sector Institutions to become ready and capable of fulfilling their roles in a new state. The project has five components:

1. Enhanced Accessibility and Efficiency of Justice Sector Institutions to Improve Service Delivery

2. Enhance Capacity of Family Courts

3. Improved Educational, Management and Administrative Systems of Targeted Law

Schools

4. Increased Citizen Engagement and Respect for Rule of Law

5. Palestinian Rule of Law Strengthened Through Windows of Opportunity

II. Summary of Analysis and Conclusions

The Palestinian (PA) Authority has made tangible progress in establishing a legal framework and justice sector institutions that are meeting the needs of male and female citizens to resolve disputes and facilitate commercial transactions and facilitate criminal and civil law. The PA has also made strides to increase women’s participation and representation in the executive and legislative branches.

Despite these achievements, the gender analysis conducted for the new Rule of Law project indicates that Palestinian women still face gender inequalities as citizens accessing justice sector institutions, and as employees within these institutions. The assessment also found gaps in laws governing women’s rights and in women’s knowledge of legal rights and responsibilities.

The project design responds to the identified obstacles sufficiently. However, the project will not provide specific assistance in enhancing women’s access to legal services, as that is incorporated under legal aid support currently provided by other donors. The project will also not focus on legislative reforms related to gender issues in specific. Although reforms are needed, proposals have already been developed and are unlikely to progress absent a functioning Legislative Council.

All activities under this project will have an integrated gender-sensitive approach that aims to benefit both men and women. Due to the shortage of women in the legal profession and the relatively small number of women involved in the justice system and in governance and political processes in general, the project assessed gender gaps in participation, access, and leadership. The project identified and will implement creative strategies for reducing gender gaps in each of these areas.

The gender strategy focuses on addressing gender gaps in the operations/structure of justice sector institutions and within court procedures. USAID will also focus on providing training to judges in (in the family and regular justice) on issues that affect women such as poverty, inheritance, custody and alimony rights. Specific interventions to promote women’s participation, address gender dimensions of access to justice, and reduce gender gaps across the judicial sector will be

- 2 -included in all components of the project. The project will incorporate gender issues into activities aimed at enhancing public engagement and awareness on rule of law.

USAID will also ensure to utilize the recently- developed Promoting Gender Equality and Equity Strategy 2011-2013, and the USAID Policy on Gender Equality and Female Empowerment.

Finally, it is worth noting that the DGO team conducted the second round of meetings with relevant stakeholders including representatives from the Ministry of Justice, High Judicial Council, law school students and civil society representatives to discuss the main findings of the analysis and explore any additional interventions that can be provided under the new project to address gender related gaps. All interviewees agreed on USAID’s analysis and proposed areas of intervention, attached a copy of brief notes taken from the meetings.

III. Gender Analysis

ACCESS TO RESOURCES

Obstacles/Causes of Inequality: Limitations persist on women’s access to justice

The Palestinian Basic Law aims to ensure equal treatment of men and women in social, economic, and political spheres. Article Nine of the Basic Law states that, “Palestinians shall be equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability”1. Despite the egalitarian status granted to women in the Basic Law, Palestinian women have consistently had less access to justice sector services than men for various reasons:

Informal justice still predominates as public awareness and access to justice sector institutions is limited. Palestinian women continue to rely on informal networks and traditional forms of justice, even though that these systems may not protect women human rights. This is particularly true in rural areas, and is attributed to a perception that the courts have not effectively addressed major issues that affect women such as violence against women and honor killings.

Discriminatory social norms and practices. The prevailing culture in Palestinian society further reinforces traditional norms of patriarchal dominance and stereotypes in dealing with women. In some rural communities, women are not allowed to interact with public institutions without the consent or participation of a male member of the family. The cultural norms and traditions such as those governing the issues of inheritance, maintenance, and property; which place men in decision making positions, also impede women’s access to justice.

Limited capacities of justice and security personnel to deal with gender-related issues. Until now, the Palestinian justice and security personnel do not have specialized knowledge to deal with gender-related or gender-sensitive issues, which deters women from seeking redress for issues such as gender-based violence. In addition, the justice sector has limited female participation, which could serve as deterrence for women to seek justice as the sector could be perceived to be male-dominated.

Effect of Obstacles on Implementation The limitations on women access to justice sector institutions will not impact the project directly, as the project is not focusing on access to legal services issues. The project is focusing on

1 Gender Cross‐Sectoral Strategy 2011‐2013

- 3 -strengthening the institutional capacities of justice sector institutions and improving judicial services. These limitations impact the project indirectly in two ways:

Lower participation of women in the civic engagement activities which aim to educate and increase awareness on rule of law issues.

Lower participation of women in the trainings planned for the justice sector personnel.

The limitations on women access to justice could also present an opportunity for the project as it will focus on increasing women awareness of rule of law issues. The project will also work to build the capacity of justice sector personnel on gender related issues. Both of these factors will lead to positive impact to mainstreaming gender in the justice sector.

Differential impact of results: Men/Women Some of the project interventions will be designed to primarily target women, such as civic engagement grants focusing on increasing legal literacy among women. Other activities will be designed to increase awareness of gender-related issues among justice-sector staff in order to address issues that deter women from accessing the justice sector.

Adjustments in Project Design The project will not provide assistance to increase women’s access to legal services, as this does not fit within the scope of work.

The project is planning the following activities to mitigate issues related to women access:

Increase public awareness in specific communities of the legal rights and responsibilities of men and women and the role of the formal justice system in resolving disputes. To better gauge the impact of the public awareness campaigns, the project might consider support to organizations that can target specific audiences on specific issues such as gender-based violence.

Provide grants to women’s organizations to enable cooperative engagement on issues such as sexual harassment and discrimination.

Reach out to legal professionals, traditional, tribal, and civic leaders in dialogue about greater use of courts to resolve violence against women issues-particularly honor killing- how these are addressed by the law and that how the courts can deliver justice that is fair and transparent for female citizens.

Provide gender sensitivity and integration training to employees of the High Judicial Council and judges (in civil and family courts). This training will introduce staff to the concepts of gender equity and equality and provide techniques for identifying gender norms and behaviors that reduce opportunities for female court administrative staff, and will help identify any issues that women might have in the work place.

Work with the Court Administration Department to review their policies and make adjustments to ensure gender equality. Develop administrative processes for reporting sexual harassment or gender inequality within the work place.

KNOWLEDGE/ BELIEFS/ PERCEPTIONS

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Obstacles/Causes of Inequality: Poor legal literacy among women

Despite numerous women’s empowerment initiatives being implemented in the West Bank and Gaza with a focus on enhancing women’s awareness of their legal rights, a public perception survey conducted by UNDP shows that women’s legal literacy remains significantly lower than men’s2.The UNDP survey also indicated that those with poor legal literacy (a lack of understanding of their legal rights) were less likely to access justice, demand their legal entitlements before justice sector institutions or hold institutions accountable for due process violations. According to the Rule of Law project assessment, there was strong support for introduction of rule of law education at the high school level.

Effect of Obstacles on Implementation

The poor legal literacy among women could affect the level of women participation in the third component of the new Rule of Law project (Increase citizen engagement and respect for rule of law). The project will work with different stakeholders including justice sector institutions, civil society organizations, schools, and community centers to ensure outreach to wider range of women constituencies.

Differential impact of results: Men/Women

Some of the project interventions will be designed to primarily target women, such as civic engagement grants focusing on increasing legal literacy among women. Other activities will be designed to increase the capacities of justice sector institutions to reach out to citizens on legal literacy issues. Detailed activities are included below.

Adjustments in Project Design

The project will increase public awareness of citizens about the legal rights and responsibilities of men and women and the role of the formal justice system in resolving disputes. The project will also work to strengthen the communications capacities of justice sector institutions focusing on outreach to Palestinian citizens and conducting campaigns on legal literacy, particularly targeting women.

The poor legal literacy among women presents an opportunity for the project as it will focus on increasing awareness of Palestinian citizens on legal issues, particularly women, through civic engagement grants. Activities could include:

Awareness and education campaigns to increase legal literacy among women. The project will work in high schools, community centers, and utilize public campaigns to ensure reaching wider range of women constituencies, particularly in rural areas.

Programs for primary and secondary schools to visit courts could include female role models within the courts at all levels, to stimulate girls’ interest and promote acceptance among boys of female leaders in the justice sector.

Support the High Judicial Council and courts to conduct outreach campaigns in schools and communities about issues violence against women, legal rights and responsibilities.

2 Public Perceptions of Palestinian Justice and Security Institutions, UNDP, December 2011.

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A public awareness campaign to raise the community’s awareness about the changes to the penal code, Family Code and Labor Code.

In cooperation with the Ministry of Women Affairs and Ministry of Justice, sponsor and facilitate workshops for civil society; human rights activists and women in general on honor killings, violence against women, and sexual harassment and discrimination to encourage greater understanding of the law

PRACTICE AND PARTICIPATION

Obstacles/Causes of Inequality: Limited participation of women in justice sector institutions.

According to the Palestinian Gender Strategy for 2011-2013, the participation of women in national, judicial and civil institutions, at the level of political decision-making and in political and cultural life is a right enshrined in all international instruments and conventions. Women’s participation at these decision-making levels is thus an important indicator of women’s status is a society.

Despite progress in the situation of Palestinian women in the judicial system, women’s participation remains limited and gender gaps are still in place to date. According to the Palestinian Cross- Sectoral Gender Strategy for 2011-2013, women constitute only 13.2% of the judges in West Bank and Gaza. In 2008, there were 21 female judges as opposed to 159 male judges. This proportion is lower in Gaza than in the West Bank.

According to the Palestinian Cross- Sectoral Gender Strategy for 2011-2013, the percentage of women lawyers increased to 17% in the West Bank and 16.3% in Gaza Strip in 2006 from 9.3% and 9.4% respectively in 2000. Two female Family Court judges were appointed in 2009, increasing the proportion of female judges to 16%. This is considered an achievement in terms of women’s professional employment in view of the sensitive and influential nature of this position, as these judges decide in important issues such as marriage, divorce, child custody and maintenance.

There are no systematic barriers for hiring women within justice sector institutions. However, the majority of Palestinian women do not traditionally choose this profession due to the nature of work as it requires longer working hours and involves cooperation with a number of stakeholders and issues such as crimes and late working hours, which is not welcomed within the social norms.

According the Palestinian Justice Enhancement Project’s (PJEP) gender strategy, around half of Palestinian law students are now women; and that female lawyers have achieved some visible success. The most recent batch of judges hired has far more women, a testament to the success of female lawyers as five years of legal practice are required to qualify as a judge.

Effect of Obstacles on Implementation

The participation of women in the justice sector will impact the level of female participation in the project’s institutional strengthening activities. For example, it is expected to have lower rates of female participants in trainings provided to justice sector personnel.

Differential impact of results: Men/Women

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The project will build the capacities of sector institutions and personnel; men and women equally.

The project will ensure integration of gender considerations in project implementation and that females in the sector are fairly targeted in the project. The project will seek to build the capacities of female judges and justice sector staff. In addition, under Component Three (Improve Educational, Management and Administrative Systems of Targeted Law Schools), the project will ensure equal participation of women in all activities including trainings, internships and clerkships.

Adjustments in Project Design:

1. Strengthen the participation of women in justice sector

The project will ensure that women personnel are fairly represented in the capacity building activities targeting justice sector institutions. The project will also integrate gender-issues in capacity building activities targeting justice sector personnel. In addition, curricula developed for core management skills of court staff could include court decorum, the proper treatment of female litigants and female judicial professionals in the court room, sexual harassment mitigation, and gender sensitivity.

2. Strengthen the participation of women in activities targeting law schools

The project focuses on developing the capacity of targeted law schools. This will include provision of needed training, technical assistance, and equipment to the law schools and their students. The new Rule of Law project will integrate gender issues activities targeting law students such as internships and Moot Court competitions. Specific interventions could include:

Every effort should be made to recruit an equal number of female and male law students in any clerkship, internship or externship programs established through the project. While the number of female law students is near parity with male students, the selection committees need to ensure that gender equality is achieved in special programs for top students.

Collaborate with UNDP for male and female law students to receive training and internships in legal aid clinics, focusing on the provision of support to clients with problems concerned with gender-based violence.

Provide opportunities for male and female law students to participate in international competitions that enhance practical skills, such as the Jessup Moot Court Competition.

TIME AND SPACE

Obstacles/Causes of Inequality: Lack of appropriate infrastructure at justice institutions

Courthouse infrastructure, particularly in Ramallah, is inadequate. The Ramallah courthouse, like many others in the West Bank, is housed in an apartment building in the middle of a residential area. Most court sessions are held in judges’ chambers rather than in proper courtrooms, due to lack of space. There is inadequate waiting space for the public, and litigants, witnesses and experts have to wait in the court corridors or stairways for their sessions. Also, there is no room for new personnel, including judges and clerks, which creates a limitation on the the HJC in hiring new personnel. Judges, lawyers, prosecutors, witnesses and the suspects (and their families) all enter and exit the courthouse from the same entrance, which poses security risks. There are no purpose-built holding cells in the Ramallah courthouse. Instead, suspects are usually held in the

- 7 -kitchen which has been transformed into a holding area. Service departments in the courthouse (such as notifications or enforcement) are not spacious enough to accommodate multiple individuals on the counters. There are is also inadequate infrastructure to ensure the security of files and court documents.

Effect of Obstacles on Implementation

The lack of appropriate infrastructure reduces the standard of service provision, compromises security for judges, lawyers, citizens and litigants, and violates defendant rights due to, among other things, inadequate holding facilities. The poor infrastructure impacts the responsiveness of employees to project interventions and their level of engagement. It also affects the moral of employees and willingness to participate in technical interventions. The project will rehabilitate and upgrade justice sector offices and courts.

Differential impact of results: Men/Women

Improvements of justice sector institutions’ infrastructure is not expected to have major differences on how it impacts men and women. In general, this could encourage female citizens to access justice sector institutions. However, there are no statistics to support this. In addition, the improvements could encourage more females to work in the justice sector due to the availability of suitable work spaces.

Adjustments in Project Design

No adjustments are needed since the project design already includes improvements and upgrades to infrastructure of justice sector institutions.

LAWS, LEGAL RIGHTS, POLICIES, AND INSTITUTIONS

Obstacles/Causes of Inequality: Women face discriminatory laws, regulations, and policies in West Bank and Gaza

Palestinian laws discriminate against women. The PA’s has not been able to ratify the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and other international human rights conventions, which deprive Palestinian women of critical protections.

Until recently, and as a non-state actor, the PA was not permitted to sign or ratify an international treaty and is therefore not a party to CEDAW or other international conventions. A 2011 UNDP study highlights the main issues of concern pertaining to women and girls under Palestinian law as against state obligations embodied CEDAW.3 While the Palestinian Basic Law provides for equal treatment under law without discrimination as to sex (Art. 9), it fails to expressly provide for positive discrimination. The Basic Law also provides that Islamic Shari’a shall be the main source of legislation, yet interpretations of Shari’a law discriminate against women.

Personal status laws in force in the West Bank and Gaza do not comply with CEDAW. Females may marry at 14 years and 6 months in the West Bank and 14 years and 7 months in Gaza (with judicial consent) even though these provisions contradict the Palestinian Child Law No. 7 of 2004.

Women, but not men, are required to obtain consent from a male relative to marry. In both the West Bank and Gaza, a man may marry up to four wives by faith. Only men have an unconditional

3 Reem Al‐Botmeh, A Review of Palestinian Legislation from a Women’s Rights Perspective, UNDP (Sept, 2011).

- 8 -and statutory right to unilateral divorce. For women, the right to unilateral divorce must be specified in the marriage contract and is conditional upon abandonment, discord or conflict between the spouses. Otherwise, a woman can only seek separation based on mutual agreement, in which case she must absolve her husband of his contractual financial obligations.

Custody provisions also discriminate against women by providing for the father’s custody after the children reach the legally designated age of puberty. Upon remarriage, a woman automatically loses custody of her children. Family court judges are reportedly able to work around certain legal provisions to secure more just outcomes for women. As the UNDP study notes, a better understanding of how family courts are able to respond to women’s needs may enable women to better defend their rights.

Criminal laws discriminate against women and fail to address Gender-Based Violence. According to the UNDP study, the most recent draft law (prepared under the auspices of a national commission composed of representatives of the Ministry of Justice (MOJ), Ministry of Women’s Affairs, Attorney General’s (AG) Office and women’s and human rights organizations) is generally well regarded. The new draft law, if passed, would remove judicial exemptions for crimes committed in the name of so-called family honor, provide a minimum sentence for murder of 5 years, criminalize sexual harassment and domestic violence, contain new rules to protect women from violence, including rape and sexual assault, and address crimes perpetrated against children, including sexual assault. However, the draft law contains problematic language in relation to crimes purportedly committed subsequent to discovering the victim committing adultery.

The Palestinian Labor Law generally conforms to international standards through provision for non-discrimination in working conditions and maternity rights. However, it excludes from its ambit domestic workers and individuals who work for family members, the majority of whom are women. The Labor Law does not expressly address discrimination in promotion. As noted below, labor laws have not translated to equal treatment of women in practice.

Effect of Obstacles on Implementation

The discriminatory laws will not impact the project’s activities targeting institutions strengthening for the justice sector. The project does not focus on legislative reform. However, the existing discriminatory laws will indirectly impact the third project component targeting to increase citizen engagement and respect for the rule of law. Through grants to civil society organizations, the project could work on advocacy and awareness raising on discriminatory laws and policies.

Differential impact of results: Men/Women

Under the civic engagement activities, the project will target both men and women to raise awareness and support advocacy on issues related to discriminatory laws. Some activities might focus more on reaching out to women groups.

Adjustments in Project Design

In addition to providing grants to civil society organizations to engage citizens on issues related to women rights, the new Rule of Law project will integrate gender issues within the law schools curricula and activities targeting law students such as internships and Moot Court competitions.

Specific interventions could include:

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The design of any new courses for law schools should integrate a gender analysis into the topics covered by each course.

Focus community outreach and public legal education programs for law students on the implementation of the MoWA violence against women strategy.

Provide comparative relevant library materials in English and Arabic concerning women’s rights, sexual discrimination, and sexual harassment, and violence against women to the selected law schools.

Obstacles/Causes of Inequality: Limited awareness and integration of gender-issues in the operation of justice sector institutions and administration of court cases

Integration of gender issues in the operation of justice sector institutions and management of court cases is still at early stages of implementation. Following the development of the PA’s Cross- Sectoral Gender Strategy for 2011 – 2013, the PA has to implement interventions to streamline gender considerations in management structures and employment practices, policies and procedures, and administration of court cases.

Effect of Obstacles on Implementation

The project will work with justice sector institutions to integrate gender considerations in activities targeting the revision of administrative policies and procedures and management of court cases.

Differential impact of results: Men/Women The activities will target to improve the business process of justice sector institutions, and integrate gender within these processes. The changes would ultimately positively impact women accessing justice sector institutions.

Adjustments in Project Design

The new Rule of Law project will strengthen the capacity of justice sector institutions including family courts to address gender issues in their operations and administration of court cases. The project will also address gender gaps in the operation/structure of justice sector institutions and within court procedures. In addition, the project will integrate gender considerations in capacity building interventions targeting judges and court staff. The project will work directly with the High Judicial Council’s Court Administration Department, the Strategic Planning and Project Management Department, Judicial Inspection Department, Media and Public Affairs Department, the Technical Department and the courts on gender-integration initiatives.

Gender Integration activities targeting the operations/structure of the High Judicial Council and Family Courts

Gender sensitivity and integration training to employees of the High Judicial Council and judges (in civil and family courts). This training will introduce staff to the concepts of gender equity and equality and provide techniques for identifying gender norms and behaviors that reduce opportunities for female court administrative staff, and will help identify any issues that men might have in the work place.

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Work with the Court Administration Department to review their policies and make adjustments to ensure gender equality. Develop administrative processes for reporting sexual harassment or gender inequality within the work place.

Ensure that the training needs assessment survey tools include questions that assess participants’ gender training needs and issues. The training needs assessment of judges’ professional training needs could identify gaps in understanding of gender sensitivity. Short terms judicial curriculum development experts experienced with integration of gender sensitivity could provide an initial framework and then review each specialized course.

Development of staffing and management plans for courts and departments that take into account gender equity in staffing at the court administrative and judicial level

Development of bench books on changes to the penal code that specifically address violence against women, such as honor killing; sexual harassment and job discrimination (the Labor Code) and changes to the Personal Status Law (Family Code).

Gender Integration strategies in administration of court cases:

There are a number of gender-related justice issues that are of keen interest to the PA, and to women, in particular around the procedures used to process cases of violence against women. The MoWA has developed a strategy for 2011-2015 targeting different key ministries, such as the Ministry of Justice, to change their procedures on handling issues related to violence against women. Likewise, the procedures within courts should reflect this comprehensive strategy. The project will work with justice sector institutions to ensure that court procedures comply with the intent of the strategy. Possible activities include:

Facilitation of working groups bringing related stakeholders including survivors’ groups to design and implement procedural changes for court processes related to cases concerned with violence against women or sexual discrimination and harassment.

Adoption of improved case management manuals, systems and techniques, including bench books for judges to refer to legislation regarding the revised penal code and Family Code (former Personal Status Law) once they are promulgated.

Training for judges, court staff, and lawyers on revised court procedures for handing cases concerned with violence against women, the Penal Code, the Family Code (as above); and in gender sensitivity to ensure that court users do not encounter improper attitudes within the court.

Strengthen the capacity of the Palestinian Justice Institute on gender issues The new Rule of Law project will strengthen the capacity of the Palestinian Judicial Institute (PJI) to integrate gender issues within its courses and curriculum for new judges:

Recruit female judges to be trained as judicial and legal trainers and include provisions to continually increase the pool of qualified female trainers to balance the availability of trainers of both genders.

Provide the PJI library with gender-focused print and electronic material, in English and

Arabic languages.

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Link the PJI to other training institutions in the region, the U.S. and possibly other countries that have successfully integrated gender equality into continuing judicial training programs.