The Palestinian path to the Convention on the Rights of the Child: Anticipation and discussion

Abstract

As Palestinian society prepares for statehood and finalizes a state constitution, the Palestinian legislation and policy-makers must ensure that Palestinian children’s rights are upheld according to the Convention on the Rights of the Child. Palestine clearly has a dedication to children’s rights and as a society is committed to advocating and supporting them. In order for children’s rights to be upheld within the Palestinian community as they are delineated in the Convention on the Rights of the Child, it is necessary for the Palestinian government to make certain that national law echoes Convention on the Rights of the Child rights. The current Palestinian Basic Law takes into account international treaties and mandates but also espouses Sharia law as one of its foundations, as Sharia law is part of the Palestinian national discourse and identity. Due to this, it is integral that Palestinian law and policy-makers juxtapose the Palestinian Basic Law and the Convention on the Rights of the Child to identify any discrepancies or inconsistencies between the two so that discussion can occur on how best to uphold children’s rights in Palestinian society.

As Palestinian society prepares to become a sovereign state, it aims to be accepted into the international community. Since 1948, the Palestinian people have been under Israeli occupation and have been denied the right to freedom that has challenged their well-being (Council of the European Union, 2004; Stephan, 2003). In 1993, the Palestinian leadership signed the Oslo Accords (a political agreement) in anticipation that within 5 years of the interim period, the Palestinian people would gain sovereignty over the 1967 area, which includes the West Bank and Gaza Strip (Zanotti, 2012). Although the interim period has long passed, Palestinian people are still under Israeli occupation and are still working to establish the necessary institutions and conditions to achieve the overall goal of national liberation. Thus, the task of state building in the modern globalized era is combined with an effort to align domestic policies with international treaties, especially on issues pertaining to human rights for children and adults. Indeed, the endorsement of the United Nations (UN) Human Rights Declaration and the United Nations Convention on the Rights of the Child (UNCRC; UN General Assembly, 1989) signals the Palestinian community’s willingness and readiness to engage with the world community as it becomes an independent state. Certainly, to make human rights treaties applicable and viable, it is vital that their premises and articles are supported and compatible with Palestinian laws and domestic policies. It is through the Palestinian legislative process that universal human rights doctrines, and in the case of this article the CRC, are linked with the national constitution (Habashi et al., 2010). Hence, for the CRC to be effective within Palestinian society, it is important to identify the discrepancies and/or inconsistencies between the Palestinian Basic Law (PBL, 2003), a national constitution that is based partially on Sharia law, and the CRC. This analysis will anticipate the gaps in implementing the CRC and therefore allow a conversation on issues that might be raised when Palestine becomes recognized within the international community as a nation-state and formally ratifies the CRC.

It is significant to the contextualization and interpretation of the CRC in the Palestinian community to examine the inconsistencies between the PBL and the CRC. The identification of inconsistencies and discrepancies between the two documents will help in understanding the limitations of implementing children’s rights and will assist Palestinian decision- and policy-makers to scrutinize and predict the status of whether or not the Palestinian discourse will be conducive to fully implement children’s rights. To understand the limitations of upholding Palestinian children’s rights according to the CRC, it is necessary to unpack the following concepts: (1) the Palestinian community’s commitment to the CRC, (2) human rights and the PBL, (3) Sharia law and the CRC, and (4) the discussion of moderate cultural relativism as Palestine struggles to be part of the international community while safeguarding children’s rights. The discussion of these issues will showcase the limitations of implementing children’s rights but also will present the opportunity to achieve this goal.

The Palestinian Commitment to the CRC

The Palestinian Authority (PA) is committed to the premise of the CRC, as is apparent in “[the translation of] the principles of the Convention on the Rights of the Child into the daily lives of children, families and communities” (Riggio, 2002: 54). The creation of the CRC established parameters for upholding children’s rights whereby any violations made by nation-states are considered a suppression of children’s human rights. A significant historical factor in the Palestinian community’s commitment to the CRC is the oppression of Palestinian children by the Israeli occupation. Israeli policies have violated the basic rights of Palestinian children (Defense for Children International–Palestine Section (DCI-PS), 2009), and Israeli occupation has denied Palestinians freedom and fundamental human rights. Because of this, the PA has extensively incorporated the CRC as the benchmark to protect the different spectrums of Palestinian children’s rights, specifically the issue of children’s detention as adults in Israeli prisons (el-Helah and Itani, 2010). The Israeli government continues to infringe on children’s rights as approximately 700 Palestinian children under the age of 18 are prosecuted each year through its military courts. The charges are mainly based on Palestinian children throwing stones at the Israeli Army, which under Israeli military law is punishable by up to 20 years in prison. Currently, 176 Palestinian children are held in Israeli prisons and 31 of the 176 children are under the age of 16. In addition to children’s detention, other Israeli violations of CRC premises are evident in Palestinian children’s lack of access to health care, education, and other social services (MIFTAH, 2012) due to the existence of the separation wall and checkpoints that restrict freedom of movement (Batniji et al., 2009).

While initially the Palestinian commitment to the CRC was based on the Israeli occupation, it is no longer only associated with Israeli violations but also with the legislative process of the PA. The Palestinian community and its institutions are utilizing the CRC as a foundation for local laws regarding children as is evident in PA documentation and implementation of the CRC (Palestinian National Authority, 2010). As a result, the role of the PA is no longer limited to defending Palestinian children from Israeli military actions, as they assume the responsibility of promoting the CRC as a basis for the development and overall well-being of Palestinian children. This includes the establishment of necessary policies in Palestinian social and political programs. The Palestinian commitment to the CRC is observed in the PA instituting appropriate measurements for the protection and promotion of children’s rights (Palestinian National Authority, 2010).

The process of integrating the CRC in Palestinian policies and the larger community will create both opportunities and challenges. The Palestinian community has an opportunity to create a vision of what it means to be a Palestinian child and, therefore, establish the required institutions and procedures to uphold the CRC. The presentation of such commitment to CRC principles is observed in its integration with the PBL. It is necessary to include the premise of human rights treaties in the PBL to ensure that the commitment to rights is not only community-based but also backed by national laws. However, to understand the weight of children’s rights in Palestine’s laws, there is a need to analyze the PBL and CRC and identify the discrepancies between these documents. For example, one inherent inconsistency between the CRC and Sharia law is that Sharia law entangles the rights of the child with the rights of their parents/family, while the CRC concentrates on children’s rights as individuals (Nyazee, 2003). Indeed, due to these inconsistencies, it is important to delineate the gaps in future implementation of CRC in the Palestinian community.

Human rights and PBL

As a result of the 1993 Oslo Accord, the PA started creating national institutions and national regulations, which included the drafting of the PBL (Declaration of Principles on Interim Self-Government Arrangements (“Oslo Agreement”), 1993). The main purpose of the PBL is to serve as a transitional constitution until the Palestinian community gains independence and statehood (PBL, 2003; Strawson, 1998; Wing, 2002). The drafting of the PBL is not a new exercise since it has been in the making for more than 20 years by the Palestinian Liberation Organization (PLO) and other political affiliates (Mishal and Sela, 2000). The current construction of a Palestinian constitution parallels local religious and political nuances as well as the definition of legislative power (PBL, 2003). Interestingly, the initial drafting of the Palestinian legal and national charters in the late 1970s did not include religious discourse as it was not as significant as achieving Palestinian liberation from Israeli occupation (Parsons, 2005). Currently, liberation is still the goal (although not in sight); however, religion has assumed a greater influence within the Palestinian community and political discourse and has become part of the national constitution and the foundations for a nation-state. While religion, particularly Islam, has become a larger basis for laws and regulations in Palestine, it should be noted that Palestine is a multi-faith society. As in any region, individuals in Palestine are not limited to practicing Islam, with a number of Palestinians identifying as Christian or even agnostic/atheist. Nevertheless, as the PBL utilizes Sharia law as a foundation, this article will address Sharia law in relation to the CRC in the Palestinian territories rather than bring in an analysis of other religious perspectives to analyze the PBL and CRC.

Indeed, Palestinian laws and regulations are contingent upon a successful and operational national constitution. The country’s vision described in the PBL articulates a nation of multi-dimensional identities that might be perceived as a juxtaposition of two distinct paradigms (Habashi, 2008): cultural relativism and universalism. While traditionally these two models are viewed as abstractions rather than applied to directly analyze laws or customs, they will be used as a basis for providing a critique on the intersection of the PBL, Sharia Law, and the CRC. This is a helpful analysis for the premise of this article in that universalism can be viewed as a paradigm that transcends any specific region or people—it can be used to describe something, whether it is a norm, custom, or community narrative, that exists among each and every group. On the other hand, the paradigm of cultural relativism is more inclusive to only one particular group or region. For the purpose of the current discussion, universalism will be used to describe the overarching basis of the CRC in that the CRC is applied, or should be applied, evenly across all cultures while cultural relativism will represent the ways that the PBL mirrors Palestinian culture in particular. Cultural relativism, by nature, is inclusive to religion and customs and based upon social traditions and, in the Palestinian case, encompasses Islamic Sharia Law. However, this approach neglects to take into account a globalized (or universal) view on human rights as it is “the position according to which local cultural traditions … properly determine the existence and scope of civil and political rights enjoyed by individuals in a given society” (Tesón, 1985). On the other hand, universalism, particularly philosophical universalism, includes the contemporary global discourse embedded in international human rights treaties, although it omits the local cultural narrative (including religion) in the application of human rights treaties (Morgan-Foster, 2003). While some might consider the inclusion of religious discourse in a state’s constitution as antithetical to the inclusion of international human rights treaties, recognizing the values of the country in a state’s ethos is not unique as it might be considered as part of the national narrative (Nyroos, 2001). In Palestine, religion is part of the national narrative and plays a prevalent role within the community identity and cultural practices (Habashi, 2011), and while the Palestinian community comprises multiple religions, Islam is a tenet within the political discourse. This notion of religion is reflected in the PBL whereby it states in Article 4 (1), “The principles of Islamic Shari’a shall be a principal source of legislation” (PBL, 2003).

The purpose of Article 4 (1) is to emphasize that Sharia Law is considered one of the principles of the Palestinian community’s vision. The construct of the Article invites misconceptions as many could argue that the PBL is based solely on Sharia law, which is not the case. The reality is that Sharia law is only one foundation of the PBL while the PA has adopted the inclusion of international mandates. However, the PBL does not explain the inconsistencies found in embracing Sharia law, which reflects the cultural relativism paradigm while adopting international human rights treaties, which parallels the universalism paradigm. The adoption of the two paradigms (relativism and universalism) might be unquestionable if there was no tension between religious and secular discourses on framing human rights policies and the methods needed to implement such rights (An-Na’im, 2000; Sharma, 2006; Tibi, 1994). Therefore, the PBL must provide a perspective on such juxtaposition and conceptualize a road map to bridge the two models. Failure to consider a bridge or articulate pitfalls of inclusion between the two paradigms might jeopardize the national religious discourse or undermine the emphasis of integrating the human rights treaties as articulated in Article 10 (2) of the PBL (2003): “The Palestinian National Authority shall work without delay to become a party to regional and international declarations and covenants that protect human rights.” Due to the incorporation of this article, it is imperative for the PA to provide an explanation of how international treaties and Sharia law are compatible in protecting human rights, in particular, children rights. It is important to point out that even this national statement in the PBL does not specifically allude to the CRC, although it is inclusive to the CRC as it is a significant element of the international human rights treaties.

Maybe the assumption is that the inclusion of two distinct paradigms is not antithetical in nature. However, embracing two dissimilar discourses in the PBL without a discussion about the nature of the relationship between these two paradigms creates challenges and ambiguity in the application of the CRC within Palestinian society. Perhaps this ambiguity and lack of discussion allow for the misconception that the Palestinian commitment to the CRC is limited within the purview of Sharia law. The challenge is not in referring to the CRC, but rather in the inherent inconsistency between international human rights treaties, including the CRC, and Sharia Law. This does not mean that the Palestinian community should not address this inherent paradox but rather it should provide an insight of how to conjoin the two paradigms in the national constitution and the implementation of children’s rights. In fact, not bridging the two discourses makes it even more imperative to explore the implied and overt inconsistencies, especially if there is no Palestinian national text describing the circumstances of how Sharia Law affects the implementation of international human rights treaties or vice versa. In this case, there is a need on the part of the Palestinian legislative body to articulate policies that ensure children’s rights while taking into account the limitations inherent within Sharia Law, which are discussed later.

Contemporary religious discourse is embedded within Palestinian politics (Habashi, 2011) and is part of the PBL as seen in Article 4. Within this religious and political structure, the premise of the CRC has to compete with Sharia law to frame national laws on children regardless of the historical use of the CRC to defend the rights of Palestinian children against the Israeli occupation (DCI-PS, 2009). For the last 25 years, the Palestinian community has utilized the CRC to defend the rights of the Palestinian child against Israeli occupation because of its particular violations, such as detention of children, inhibition of movement, and control of health care and education that are specifically alluded to within the CRC. This tradition of embracing the CRC is also supported by the PA, although it is coupled with religious discourse. This integration is due to the multiple facets of Palestinian society that is expressed in national policy and identity (Habashi, 2008). Essentially, the Palestinian legislative body has to safeguard the well-being of Palestinian children and their rights by establishing social laws imperative for their development. It seems that this can be accomplished through recognizing the intersection of religious discourse and the CRC, especially since Sharia law might create reservations to the CRC treaty and this merge might highlight the inherent incompatibility of this interaction (An-Na’im, 2000). Given the historical use of the CRC and the inherent inconsistency of this merging, Palestinian legislation is responsible for creating viable alternatives in the case of Palestinian reservations to the CRC. Countries that have a similar approach of adopting both the universalism and cultural relativism paradigms within national discourse tend to indicate reservations on some articles of the CRC under the premise of Sharia law. Therefore, it is the responsibility of the PA to articulate which discourse is weighted more and on what issue(s) of children’s rights. This is especially paramount since there is an inherent paradox in such integration, which is complicated as the PA is gaining legislative consensus for crafting the PBL and, subsequently, the domestic laws entailing children.

Sharia law and CRC

PBL takes into account Sharia law, which reflects the cultural relativist paradigm, and the globalized views of rights, which is a more universalist paradigm. The discrepancies of these two paradigms are apparent in societies, as in Palestine, that are attempting to balance both discourses in national laws. An-Na’im (2000) and Sharma (2006) argued that these two distinct notions are incompatible due to ideological differences. The secular (universalist) notion endorses the Western individualistic outlook while the religious (cultural relativism) paradigm supports the collective cultural perspective of human rights. The paradox of these (at times) oppositional ideologies is founded on which rights come first. Do individual rights, in this case children’s rights, or the notion of maintaining the collective identity come first? Do individual rights override the collective issue, or vice versa? Individual rights are supported by a secular universal approach contrary to the community relativist approach that is framed in cultural and religious beliefs (Bielefeldt, 1995; Hashemi, 2007). Sharia Law might be considered to be a part of the collective and cultural relativist approach, as it perceives children’s rights through the viewpoint of parents, guardians, and state institutions (Nyazee, 2003; Olowu, 2008). This is not the case with the CRC, wherein children’s rights stand on their own. In Sharia Law, the rights of the child are primarily entangled with parents’ responsibilities and obligations (Nyazee, 2003; Rajabi-Ardeshiri, 2009). Children have the right to parentage, which is framed in the male lineage and the child’s identified bloodline (Ibrahim and Mohd, 2011). In addition, children have the right to a proper upbringing and protection, as it is a part of the parents’ responsibility (Olowu, 2008). Parents have duties toward their offspring’s development, while children also have obligations to their parents (Rajabi-Ardeshiri, 2009). As such, in Sharia law, children’s rights are framed within the family and are contingent on family circumstances, as is seen in children’s duties toward their parents. The reciprocity rights between children and parents are dimensions of the collective approach of human rights in which adults care for children during children’s development and children in turn take care of their parents when parents become elderly.

The provision of rights of the CRC emphasizes different perspectives compared to Sharia Law in which it provides rights without implicit requirements of parental duties and male lineage (Hashemi, 2007; Ishaque, 2008), which is especially pertinent as not all children have families in a traditional sense. Obviously, Islamic scholars do not agree that children do not have rights of their own in Sharia Law. Nyazee (2003) separated children’s rights under Sharia Law using two distinct categories: the ability to acquire and exercise rights and the ability to perform duties. Every human being, including a child, is born with the ability to acquire and exercise rights, but not necessarily the ability to perform duties. To demonstrate the associated duties of rights, a child should have the intellectual ability and foresight to execute those duties. This ability is dependent upon a child’s cognitive development and maturity, but not necessarily measured through physical growth. In this analysis, a child executes rights through institutions, guardianships, or parents and the state will interfere if these support systems do not protect and nurture the child within Islamic traditions. Within this analysis, Nyazee (2003) concluded that children do in fact have rights and the rights embedded in Sharia Law are compatible with the rights highlighted in the CRC. Overall, the discussion of whether children have rights in Sharia law did not hinder some states that endorse Sharia Law as the (or a) primary source of national principle in adopting the CRC. Many countries made reservations to the CRC in the name of religion, even though any reservation regarding Sharia law is considered an undermining of the spirit of the CRC (Nyazee, 2003). Such a correlation is significant for the Palestinian community and children advocates because the discrepancy between the two discourses is not only on the issue of whether children’s rights are interwoven with the parents’ duties or not, but on other issues highlighted in CRC reservations made by nation-states endorsing Sharia Law that impact children’s individual rights. For example, one discrepancy between Sharia Law and the CRC can be found in discussing the freedom of expression (Morgan-Foster, 2003) and religion (which are closely interrelated), and some Islamic nation-states have made reservations to this right. Iraq has a reservation regarding Article 14 (1) of the CRC concerning children’s freedom of religion. It states, “allowing a child to change his or her religion runs counter to the provisions of the Islamic Shariah” (UNCRC-Iraq, 2004). As this is only one potential inconsistency between Sharia Law and the CRC, looking at any potential discrepancies will provide an insight to the future challenges of children’s issues and their rights in Palestinian national policy. Such knowledge will equip policy-makers with tools to negotiate frameworks that can better serve Palestinian children’s rights. This is especially important since ignoring the impact of Sharia Law results in indicating reservations on the CRC treaty and, therefore, rendering the possibility of children’s rights disputable.

Conclusion: Anticipated Palestinian approach to the CRC

Reservations to the CRC are considered the closest record that juxtaposes a nation-state’s identity with a universal/secular document in a singular text. This exercise will not be different within the Palestinian case, especially since there is anticipation on which reservations they are likely to indicate. Palestinian society did not ratify the CRC due only to the fact that it is not currently a sovereign nation-state. While it is not known what specific articles the future Palestinian State will have reservations on, although it is anticipated that they will have reservations on articles of the CRC similar to Islamic nation-states such as Jordan or Tunisia, they will most likely draw from two oppositional paradigms, as discussed in previous sections of this article. Universalism is secular in nature and focuses on international human rights treaties, while cultural relativism is religious and social in nature and emphasizes the traditions found in Sharia Law (Morgan-Foster, 2003). The existence of these two perspectives in a singular country is not far-fetched, as most of the secular laws deal with legal public matters while religious laws encompass family, inheritance, and children’s issues (Rajabi-Ardeshiri, 2009). Perhaps the lack of discussion in the PBL on how to juxtapose the CRC with Sharia law in Palestine is coupled with the notion that both paradigms are coming closer to an agreement on the same idea of rights. Indeed, to entertain such a possible explanation is important to recognize that Palestinian society is in a transitional state and aims to be independent while the PBL is an exercise to demonstrate the interaction of the national discourse with international treaties. The PBL does not fall on any end of the spectrum of strict cultural relativism or universalism. Rather, it tends to lean more toward moderate cultural relativism in which it endorses some international human rights values within the cultural norms (Morgan-Foster, 2003). This mid-spectrum of the moderate cultural relativism approach defines rights as they are perceived within the international perspectives and makes adjustment to the religious/cultural meaning within the reading of Sharia Law accordingly. The integration of human rights treaties is based on the understanding that Islam and human rights have a common interest toward individuals’ and communities’ well-being.

Currently, some Islamic states are moving toward the universal rights of the child, although initially the response to the CRC was based strictly on traditional religious interpretations (Nyazee, 2003). Palestinian lawmakers can look to other Islamic nations for guidance on how to (or how not to) integrate the CRC within the PBL. Some of the reservations that are based on Sharia Law are general while others are more specific. For example, Saudi Arabia opted for a general reservation in which it stated that it has “reservations with respect to all such articles [that] are in conflict with the provisions of Islamic law” (UNCRC-Saudi Arabia, 1996). However, this general reservation is actually not in accordance with Sharia Law because it does not provide sufficient explanation of the rejection (Nyazee, 2003). On the other hand, some countries have issued explicit reservations based on Sharia Law. These reservations are commonly narrowed down to three points, which include adoption, non-discrimination, and freedom of expression and religion. These issues are considered to be an important dispute and are the elements of contention between Sharia Law and advocates of the CRC. This is something that Palestinian society and leaders must take into account in enacting the PBL.

Recently, the approach for nations making reservations to the CRC citing Sharia law has been evolving. In addition, the relationship between secularity and national laws has been fluid, which provides nuances of the impact of religion on children’s realities. In 2005, there was a shift from a purely traditional religious perspective of drafting children’s rights to a more contemporary reading of Islam that complemented the secular universal understanding of children’s rights during the Rabat Declaration on Child Issues (2005). ¹ Even though Palestine and other nations/regions have begun encompassing religion in their national discourse, this move has been coupled with universalism. The Declaration of Rabat was issued by the first Islamic Ministerial Conference on the Right of the Child and illustrated a change toward the universal rights of the child without solely framing children’s rights within traditional religious terms (Rajabi-Ardeshiri, 2009). In this context, the “traditional” religious reading on children’s rights is no longer a fundamental issue due to the contemporary reading of Islam that is appropriate to some current experiences and realities of children such as children who are HIV-positive and child trafficking. The Rabat Declaration on Child Issues (2005) emphasized that the CRC urges the Member States of the Organization of the Islamic Conference to adopt the international CRC without highlighting a specific reservation. This progression of narrowing the difference between the two paradigms is echoed by Nyazee (2003) through a rigorous Islamic methodology of understanding Islam. This methodology utilizes the “principle and philosophy of Islam as enunciated in the Holy Qur’an and Sunnah” (Nyazee, 2003: 107). The lack of such methodology manifests in not understanding children’s rights and therefore indicating some reservations to the CRC, as is seen in the above discussion on Saudi Arabia’s reservations to the CRC. The argument is that some Islamic states are having reservations to the CRC based on the narrow interpretation of Sharia Law without any thorough explanations on the Islamic theological methodology of reaching this conclusion.

The implementation of moderate cultural relativism delineated in the Rabat Declaration is recently observed with Pakistan’s new approach to the CRC which resulted in the omission of the country’s reservations (Nyazee, 2003). In fact, this cultural moderate approach legitimatizing the international notion of rights is enforced through contemporary reading of Sharia law that understands modern societal challenges. Modernity in this context is observed through the exercise of cultural adjustment to the circumstances and the needs of the community and individuals. This new approach of moderate cultural relativism will aid the Palestinian community in implementing the CRC and will provide a road map in merging the two paradigms of religion and secularism. There is an opportunity to redefine the merging of the two discourses to address the needs of Palestinian children. This opportunity is not found in giving in to the Western discourse of human rights or to the Sharia Law interpretation of rights but is rather found in the reinvention of the circumstances to address and uphold children’s rights.