By Lauren Curatolo
Algeria: A Brief History
French occupation of Algeria ended on March 18, 1962, after nearly 130 years of colonialism.[1] Shortly after, power was handed to the “National Liberation Front” FLN and its President Ahmed Ben Bella.[2] After Bella’s imprisonment in 1965, Defense Minister Houari Boumedienne took control.[3] Boumedienne’s control of Algeria came with a strict adherence to the constitutional precepts of socialism as well as Islam as the state’s official religion.[4] Upon Boumedienne’s death in 1978, Colonel Chadli Benjedid, also an FLN member, took office.[5]
During the Benjedid regime, Islamists began gaining momentum, angered by the inability of the government to adhere to the economic promises they made.[6] The group gradually attained governmental power and an increased number of followers. In 1989, Abassi Madani and Ali Belhadj founded the Islamic Salvation Front (FIS) against the constitutional prohibition of religious parties.[7] The adoption of a state religion under Boumedienne was a valid exercise of the state’s authority. By 1990, the FIS promulgated Islamic-based laws that were in direct conflict with the constitution, including: closing co-educational schools; enforcing the wearing of the veil for all women; and forbidding women from working in certain areas of employment.[8]
The “. . . FIS consistently supported violence as a means to imposing their agenda.”[9] In Jane Doe I, et al. v. Islamic Salvation Front (FIS) and Anwar Haddam, the Center for Constitutional Rights and CUNY’s International Women’s Human Rights Law Clinic brought suit on behalf of nine individuals against the FIS in the U.S. District Court for the District of Columbia, in December 1996. The Plaintiffs alleged that the FIS sought to instill terror in Algerian women, often advancing attacks ranging from raping, killing, butchering, dismembering, burning, and torturing them in a variety of inhumane ways.[10]
Let us not forget that during the nearly eight-year Battle of Algiers (1954–1962), Algerian women were on the frontline of the fight for independence, [11]Algerian women became the tabula rasa upon which the newly sovereign Algeria would paint its future. [12] It is my opinion that Algeria saw feminists as a threat. The Algerian feminists needed to be subordinated in order to achieve both a national state and religious and traditional solidarity. This subordination was codified in, and promulgated by, the Family Code of 1984.
The Family Code of 1984, CEDAW, and a Simple Truth Found in the Shadows: Algerian Women are Resisting Article 222 of the The Family Code of 1984 (the Code) states that the Shari’ah, the religious law of Islam, is the primary source of the law.[13] The Code’s “most hotly contested” provisions include: the legal recognition of polygamy (Article 8); the formal nature of the daughter’s obligation to seek
permission for her first marriage (Article 8); a woman’s “marriage guardian” (her father, a close male relative, or a judge) is responsible for the termination of her marriage, if one is sought (Article 11); the father may oppose the marriage of his daughter if this is in her best interest (Article 12); the dowry is a unilateral gift made upon signature of the marriage contract and regarded as a constituent
element of marriage by the Code (Article 33); and a marriage entered into without a dowry shall be declared null and void (Article 15).[14]
Women’s civil and political rights are covered by Algeria’s adoption of CEDAW, ratified into Algerian law in June 1996 on its government’s terms. “Algeria’s international commitments prevail over domestic law.”[15] According to Algeria’s country report, once the convention “becomes part of domestic law, and acquires . . . an authority that supersedes that of law,” it “may be asserted by [any] Algerian citizen against domestic jurisdiction.”[16] In an attempt to align CEDAW with the already promulgated Family Code, [17]
Algeria submitted reservations and declarations upon its ratification of the treaty; in adopting a treaty, a state may add reservations that limit the scope of its force domestically so as not to conflict with its national laws. The CEDAW country report submitted by Algeria states, “As in all the societies that make up the Arab-Muslim world, the legal status of women in Algeria presents a dichotomy. Thus, the
constitutional principle of the equality of the sexes is scrupulously respected when it comes to civil and political rights: women have the status of full citizens. With respect to their personal status, they are governed by the Family Code, which is based in part on the Shariah.”[18] In 2005, the Algerian government did modify the Family Code. The new Family Code includes provisions such as: women’s right to choose their husbands; to conserve their heritage; to ask for divorce; and to manage their own properties and the right for inheritance.[19]
While the modification of the Code was viewed as a victory for many Algerian women who were demanding modification, it has simultaneously created adversity in other women’s lives.[20] “Women were told that by repealing the 1984 law on marriages, they and their children would finally enjoy rights and protections in the case of divorce. Promises of what the new law would bring ranged from ‘equality of the sexes’ to ‘strengthening the family unit.’”[21] However, the new Family Code did nothing except create new ways for husbands to circumvent their obligations to their former wives and children.[22]
Yet in what has been deemed a “quiet revolution,” Algerian women have carved out modes of resistance to the marginalization and commodification of their physical, sexual, emotional, and psychological lives. Women have increasingly become self-agents, transcending traditional notions of a woman’s work, and instead advancing to leadership positions in both the economic and political worlds in Algeria. “Women make up 70 percent of Algeria’s lawyers and 60 percent of its judges. Women dominate medicine. Increasingly, women contribute more to household income than men. Sixty percent of university students are women . . . . ”[23]
However, while progress is being made, it seems as though persisting traditional notions of a woman’s place in Algerian society are burying autonomy. While filming a documentary in Algeria in 2005, I met and became friends with Karina, a young Algerian woman who embodies resistance. Speaking in French, Karina told me, “We all have a virginity, men and women alike. But, once a woman loses her virginity, it’s over. It’s a label. It’s a catastrophe.”[24]
Truth and Reconciliation: The CEDAW Problem and a Possible Solution
The reservations to CEDAW submitted by the Algerian government limit its effectiveness in asserting Algerian women’s rights. Johanna Bond, a legal scholar who focuses on international human rights law and gender and the law, states that although CEDAW has proven to be a useful tool for activists, “[I]t fails to acknowledge that women may face multiple forms of discrimination, such as that based on, among other things, race, ethnicity, culture, religion, or sexual orientation.”[25] Further, a state’s reservations to CEDAW often shield the state’s family, customary and religious laws—like the Family Code and Shari’ah law—from scrutiny by international monitoring bodies.[26]
An alternative to CEDAW could be The Protocol to the African Charter on the Rights of Women in Africa (the Protocol). Algeria has, to date, failed to ratify the Protocol.[27] Bond suggests three reasons why the Protocol can serve as a significant and monumental tool in the promotion of women’s rights in Africa, “First, the Protocol offers credibility within the region. African women played a large role in drafting and promoting the Protocol. Second, the Protocol has strong substantive provisions for the protection of women’s rights in the region . . . Third, the Protocol provides a . . . procedural right which . . . could lay the foundation for engaging grassroots discourse that promotes women’s voices in the ongoing process of cultural definition and the articulation of customary norms.”[28] The objective of the Protocol is to close the gaps that are found in CEDAW and the African Charter, “seeking to correct CEDAW’s neglect of culture and the African Charter’s prioritization of culture to the neglect of gender equality.”[29] This egalitarian treaty establishes substantive provisions that, if ratified by Algeria, could serve as a base for the advancement of women’s rights in Algeria. Both CEDAW and the African Charter fail to solve the issues of domestic violence, rape, and other atrocities that women face on a daily basis, including less overt but equally degrading forms of oppression, like placing value on a woman’s “preserved” hymen.
The repression of women’s sexuality and the promulgations seeking to codify that repression such as the Family Code are forms of torture. As international human rights and gender rights scholar and activist, Rhonda Copelon, has demonstrated: (1) including intimate partner violence in the definition of torture and cruel, inhuman, and degrading treatment; (2) recognizing gender-based violence as an independent violation of international human rights; and (3) recognizing gender-based violence along with torture as a violation of norms having preemptory status,” are steps toward placing more direct pressure on the states to eliminate nonegalitarian texts that perpetuate the decentralization of women’s rights.[30] Redress needs to be offered to women who suffer at the hands of privatized violence, to ensure that women’s economic dependency and men’s social and cultural entitlements are eradicated.[31] This eradication needs to happen through state enforcement.
Yet we must also address the violence of prevention. Preventing women from entering into the world of sexuality prior to marriage, preventing women from being free agents, entitled to their bodily integrity, and instituting a state-wide protectionist model such as the Family Code, meant to keep women domesticated and silenced, their hymens intact, should be seen as a form of torture, or subject to challenge under international norms because of the way it facilitates tortious acts against Algerian women. Violence extends beyond the physical, and is protected, perhaps even encouraged, in the confines of the home. This violence and systematic oppression stems directly from stateenforced interpretations of Shari’ah that have essentially kept women on the peripheries of economic, political, social, and sexual autonomy. If women are able to hold the state directly accountable when they are deprived of economic, social, political, and sexual freedoms, it will be a way of actualizing complete bodily autonomy.
Including ideas such as mandated hymen preservation in the definition of torture invites the following concern: doing so will dilute the concept of torture in international law. However, if another term were to be used for what is happening to women globally, we would further marginalize issues that all states should be addressing without reservation. We should redefine “torture” as the exertion of control and power over another human being that intentionally, knowingly, recklessly, or negligently causes, or seeks to cause, severe mental, physical and psychological pain or suffering. At one end of the spectrum, there is penetration against one’s will: rape. At the other end of the spectrum, there is statemandated abstinence. To force sex upon a woman, or to deny her the choice of having sex, ultimately strips her of bodily autonomy and integrity; thus, both should be considered forms of torture.
Conclusion
At the hands of liberalization, Algerian women were tucked into the corners of their country’s Constitution and given Shari’ah-imposed duties through the Family Code. International treaties have been ineffective in advancing women’s rights as human rights and in centralizing the various forms of the overall dehumanization of women in Algeria. Violence against women, in both the private and public spheres of the Algerian state, must be internationally recognized as torture.
1 Chafika Kahina Bouagache, The Algerian Law on Associations Within Its Historical Context, 9 INT’L J. NOTFOR-PROFIT L. 37, 39 (2007).
2 Id.
3 Id. at 39.
4 Id.
5 Id. at 42.
6 FEDERAL RESEARCH DIVISION, ALGERIA: A COUNTRY STUDY 62 (Helen Chapin Metz ed., 1994).
7 Id.
8 BENJAMIN STORA, ALGERIA, 1830-2000: ASHORT HISTORY 253 (Jane Marie Todd trans., 2001); Peter A. Samuelson, Pluralism Betrayed: The Battle Between Secularism and Islam in Algeria’s Quest for Democracy, 20 YALE J. INT’L L. 309, 352 (1995).
9 Shadow Report on Algeria, INTERNATIONAL WOMEN’S HUMAN RIGHTS LAW CLINIC AND WOMEN LIVING UNDER MUSLIM LAWS, http://www.nodo50.org/mujeresred/argeliashadowreport.html (last visited Apr. 24, 2011).
10 Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3, 5–6, (D.D.C. 1998) (though eventually losing the suit).
11 Daniele Djamila Amrane-Minne. Women and Politics in Algeria from the War of Independence to Our Day, 30 RES. IN AFR. LITERATURES 3, 62–63 (1999).
12 Tabula rasa is a Latin term that translates in English to “blank slate.” It is the epistemological theory that knowledge develops from one’s perceptions and experiences. I use it here to explain that Algeria’s independence allowed the state to create a new foundation, and women’s bodies were a blank slate upon which the Algerian government could build a virginal, new state, on its own terms.
13 ISLAMIC FAMILY LAW IN A CHANGING WORLD: A GLOBAL RESOURCE BOOK 165 (Abdullahi A. An-Na’im ed., 2002).
14 Id.
15 Id. at 3, 8.
16 Id. at 8.
17 Id.
18 Id.
19 Boutheine Gribaa et al., Strengthening Women’s Leadership and Participation in Politics and Decision Making Process in Algeria, Morocco and Tunisia: Mapping of the Situation, 12 (2009), http://www.womenpoliticalparticipation.org/upload/publication/publication2.pdf.
20 Achira Mammeri, Algerian Women Cite Problems with Implementation of New Family Code, MAGHAREBIA (Feb. 15, 2010), http://www.magharebia.com/cocoon/awi/xhtml1/en_GB/features/awi/reportage/2008/02/15/reportage-01 (testimonials by the women adversely affected by the change are given voice).
21 Id.
22 Id.
23 Id.
24 ALGERIA, THE FREE: WHEN SILENCE SPEAKS is a documentary film I co-filmed and co-edited in 2005–2006. I traveled to Algeria and worked in the shelter SOS Femmes en Detresse.
25 Johanna E. Bond, Gender, Discourse, and Customary Law in Africa 83 S. CAL. L. REV. 509, 524 (2010).
26 Id. at 527.
27 Id.
28 Id. at 522–524.
29 Id. at 542.
30 Rhonda Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 COLUM. HUM. RTS. L. REV. 291, 353 (1994).
31 Johanna E. Bond, Gender, Discourse, and Customary Law in Africa, 83 S. CAL. L. REV. 509, 552 (2010).
