(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
The Iraqi Penal Code is unclear on the legality of homosexuality, making no explicit reference to consensual, non-prostitutional same-sex relations. However, laws that do not specifically target homosexual relations are used to prosecute homosexual acts or threaten individuals.
Global Justice Project Iraq notes that Articles 394 and 397, criminalizing sexual offences against minors, are used to impose penalties in cases where both consenting partners are under 18 while article 401, concerning public immodesty, can be used against gay couples meeting in public places. The U.S. Department of State’s 2012 human rights report found that “authorities relied on public indecency charges or confessions of monetary exchange” when prosecuting homosexuals.
This Sodomy Laws article on Iraq suggests that paragraph 376, 398, 402 (a), 403, 404 and 502 of the Iraqi penal code may also be used to incriminate homosexual behaviour.
Under Islamic law, consensual homosexual relations are punishable by predetermined penalties (including flogging and hanging). Though the general court system in Iraq does not include religious courts, militias, such as the Mahdi army in 2009, have been known to take Islamic law into their own hands. A particularly violent campaign of “punishments” of “deviant” behaviour, was documented by Human Rights Watch in 2009, and the perpetrators met with few or no consequences for their crimes (HRW 2009).
A v. The State (Immigration Appeals Board) – March 2012, a decision by the court of the appeal in Norway was “quashed by the Supreme Court” because no reason had be established for the Iraqi asylum seeker keeping his sexuality concealed. (Original case decision in Norwegian)
A v. Bundesamt fur Migration(BFM), 10th January 2012, D-6445/2009 (in German) –
A Kurdish Iraqi who was a victim of sexual abuse feared persecution by his clan (honour killing) as well as by the authorities. The court acknowledged these as objective reasons for asylum and ordered the court of first instance to grant the applicant asylum. It criticized the migration office’s assessment that he could seek protection in northern Iraq.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
A UNHCR Research paper on asylum seekers and sexual orientation in Scandinavia notes that in Iraq: “acts of discrimination, blackmailing, assault or persecution are committed by the police, judges or other government representatives themselves. As long as the state either instigates the persecution or condones it, a refugee claim can be established.”
Campaigns against gay or effeminate men have been met with indifference by the Iraqi state. In August 2009, the Human Rights Watch report, ‘They Want us Exterminated: Murder, Torture, Sexual Orientation and Gender in Iraq’ confirmed that the Mahdi army and other militias had been involved in a widespread “gay massacre”. In 2012, other reports indicated that a new wave of anti-gay violence was beginning. IGLHRC indicates that threats and attacks are carried out against men who do not conform to traditional heterosexual male patterns of behaviour. IGLHRC also states that the government made no moves to stop the gay killings and that in 2012 the Interior Ministry reaffirmed that it would not investigate the ongoing campaign against effeminate men, or “emos”, a term that has become synonymous with “gay” in Iraq. Instead, the Interior Ministry declared it would take action against those attempting to highlight this issue. More details about the decisions recommended to the state and whether it ratified them in aftermath of the killings can be found here.
Furthermore, homosexuals are at risk of attacks and “honour killings” from their own families when they are seen as violating Islamic morals, as noted in point 8 and 330 of UNHCR Eligibility Guidelines, 2009.
Brian Whitaker notes that, since the fall of Saddam, the lack of legal penalties for homosexuality has not meant the LGBTI community are safe from persecution. ‘The wave of “gay” killings was made possible by the breakdown of state control and the rise of local militias, some of them seeking to enforce their own interpretations of Islamic law. That resulted in people being killed for the most trivial of “sins” – among them barbers who gave customers “un-Islamic” haircuts.’
It is also worth noting that homosexuality is equally condemned in the Sunni Islamic society of Northern Iraq (also known as Iraqi Kurdistan) under the governance of the Kurdistan Regional Government (KRG), which is subject to the same penal law as the rest of Iraq. This attitude can be seen in the imprisonment of the physician and journalist Adel Hussein for writing about homosexuality in a report, as well as in the backlash against the inclusion of the phrase ‘gender equality’ in a new law in 2010.
Homosexuality is a crime in all of Iraq’s immediate neighbours and regularly persecuted all across the Middle East, meaning LGBTI refugees are in danger of renewed persecution if they do not seek asylum further afield.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
We are not currently aware of any organisations working with LGBTI persons in Iraq, but welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
Dr Scott Long
Dr Scott Long, Ph.D., Harvard, has led a long career in LGBTI rights activism focusing on Eastern Europe, Sub-Saharan Africa and the Middle East and North Africa. He has taught in Hungary, Romania and the Human Rights Program of Harvard Law School. Dr Scott Long was programme director of the International Gay and Lesbian Human Rights Commission (IGLHRC) from 1996 to 2002 and led the organisation’s advocacy at the 2001 UN General Assembly’s Special Session on HIV/AIDS. He founded and directed the Human Rights Watch’s LGBT Rights Program until 2010 and has produced reports on the situation of LGBTI persons in Egypt, Iraq and Iran, discrimination against binational same-sex couples in the United States, as well as working with LGBTI activists in Russia. Dr Scott Long blogs on human rights-related issues on http://paper-bird.net/.
Researched by: Alice Crocker