August 17, 2009

III. Extortion and the State: Nuri's Story

Consensual homosexual conduct between adults is not a crime under Iraqi law. The 1969 Criminal Code, still in force, expressly mentions homosexual conduct only in paragraph 393, titled "Rape, Homosexual Acts (Liwat) and Assault on Women's Honor (Hatk el 'Ard)." Despite the heading, however, the article is an attempt at a gender-neutral rape law. Its substance reads:

Any person who has sexual relations with a woman against her consent or has homosexual relations with a man or a woman without his or her consent is punishable by life imprisonment or temporary imprisonment.[60]

Some sweeping and unspecific provisions in the criminal code give police and prosecutors broad scope to punish people whose looks, speech, or conduct they simply dislike.

  • Paragraph 401 punishes "Any person who commits an immodest act" [fi'lan moukhillan bil haya] in public with up to six months in prison.
  • Paragraph 402 punishes "any person who makes indecent advances to another man or woman" [man talab oumouran moukhalifa lil aadab] with up to three months in prison.
  • Paragraph 501 punishes "any person who washes themselves in a city, town or village in an indecent manner or appears in a public place in an indecent state of undress" by up to 10 days' detention or a fine.
  • Paragraph 502 imposes the same punishment on "any person who loiters in a public place or observes such a place with indecent intent or for an indecent purpose."

Other provisions could be enlisted to restrict freedoms of expression, association, and assembly, or to penalize human rights defenders who take up unpopular issues.

  • Paragraph 200 (2) punishes with up to seven years' imprisonment anyone who promotes any "movement" that seeks to "change the fundamental principles of the constitution or the basic laws of society."
  • Paragraph 210 prohibits disseminating any information or idea that, among other things, "disturbs the public peace."
  • Paragraphs 403 and 404 permit prison terms (up to two years under the first paragraph, up to one year under the second) for "obscene or indecent" publication or speech.  [61]

Kurdish Regional Government prosecutors have used paragraph 403 against publicly raising issues of homosexuality. On November 24, 2008 an Erbil court sentenced Adel Hussein, a doctor as well as freelance journalist, to six months' imprisonment for indecent expression, because two years earlier he had published an article in the independent weekly Hawlati about health issues for men who have sex with other men.[62] 

Where the rule of law has neither respect nor reach, however, the letter of legal provisions is largely irrelevant. Many police may be ignorant of exactly what the law permits or proscribes. In April 2009, the New York Times quoted an officer at a Karada police station in Baghdad as saying "Homosexuality is against the law. And it's disgusting." He claimed that, for four months, the police had waged a "campaign to clean up the streets and get the beggars and homosexuals off them."[63]

Meanwhile, prejudice and corruption drive police repression even in the absence of legal justification. Several people told Human Rights Watch they had witnessed police harassing or beating "effeminate" men. "About four months ago in the Bab Sharqi neighborhood [of Baghdad]," one journalist said, "on the way to work I personally saw the police rounding up four 'she-males' and being very physically abusive to them-pulling their hair, kicking them, and throwing them into the back of a police van."[64]

Iraqis we interviewed accuse the police of turning a blind eye to, or colluding with, militia violence. Mashal, kidnapped by militias in April 2009, says, "There was a police patrol right next to my store when they kidnapped me; they saw everything that was happening, but they didn't intervene. Everyone believes the police [in the area] are under the control of the Mahdi Army."[65]

Most importantly, as one man remarked to us, "Police look at gay people and they see money."[66]  A military officer told Human Rights Watch that "Through my contacts in both the military and the Ministry of Interior, I have seen incredible examples of administrative corruption. They will do anything, destroy anybody, to get their hands on some money-through threats, extortion, torture. And gay men are especially easy for them to blackmail."[67]  

One young man told us a story in which official corruption and brutality intertwine. In early 2009, as the broader militia campaign was getting underway, Ministry of Interior officers kidnapped and tortured him in a murderous shakedown, to extort money because they knew he worked with an LGBT organization abroad.  He paid and escaped. He says he saw the bodies of five men killed because they could not pay.

Nuri, 21 and born in Baghdad, had gotten in touch with the London organization Iraqi LGBT when he was 17. In the succeeding years, on their behalf, he rented and ran two homes in Baghdad; these served as "safe houses" for mostly-young men who had been thrown out by their families or faced violence on the streets because they were "effeminate," or suspected of sex with other men. The London group periodically sent him small sums to maintain the houses, and that inevitably drew the authorities' attention. "One day in February 2009," he says,

I was in a taxi in the middle of Karada when special police [maghawir] stopped the car, asked me for my ID, and searched me. They took my phone and my wallet, and handcuffed me. They put a bag over my head, hit me and put me in a car. They took me to the Ministry of Interior.
Once we got there, I heard them talking on a walkie-talkie: they were telling people from the intelligence service what had happened.  
They put me in a room, a regular room, took the bag off my head, and there I was with five other gay men. I didn't know them previously, but I found out we had mutual friends. They gave their female names but not their real names. Gay men in Iraq are very cautious that way.
Then two hours later, they separated us and put each in a room. After they separated us, I didn't know anything about the fate of the other five men.  And then a police officer came and said. "Do you know where you are? You are in the interrogation wing of the Ministry of Interior." He told me, "If you have ten thousand US dollars, we will let you go." 
I said I didn't have that kind of money.
The next day at 10 a.m., they cuffed my hands behind my back. Then they tied a rope around my legs, and they hung me upside down from a hook in the ceiling, from morning till sunset. I passed out. I was stripped down to my underwear while I hung upside down. They cut me down that night, but they gave me no water or food.[68]

"I was kept in a solitary cell," Nuri says:

It was a little over two meters high: I could reach the ceiling. There was no space for me to lie down. I had to sleep semi-standing. It was like a metal box.
Next day, they told me to put my clothes back on and they took me to the investigating officer. He said, "You like that? We're going to do that to you more and more, until you confess." Confess to what? I asked. "To the work you do, to the organization you belong to, and that you are a tanta" [queen].

"The officers talked about religion," Nuri says, "that what I did was against religion. Whenever they brought up religion they would get really aggravated and beat me more." But he adds that money was foremost on their minds. "They knew the name 'Iraqi LGBT'-and they knew it helped mithliyeen financially. They knew about the safe houses. All they wanted to know was, 'Who's paying? And why are they helping you?'"

When I was questioned, they said, "You have to confess." And I said, I have nothing to confess. Then they showed me a police report. I read it and it showed everything about me from 2005 until the day I was arrested. ... They knew personal details, through gay informants. And then they took me into another room, and began torturing me again.
There were guards in army uniforms all over the Ministry building, but those who interrogated me were wearing civilian clothes. During the "business hours" they had official uniforms; but these investigations all happened after 3 p.m. when the offices closed. The interrogations were very violent: I guess they didn't want people screaming while people were visiting the building.
For days there were severe beatings, and constant humiliation and insults. I was in prison 25 days and the torture lasted 25 days. They were nine in all, working in groups of three, and every day they changed the group of three.  Every day there was a ranking officer, and two of a lower rank. The three would torture me every day, for four or five hours.
It was the same form of abuse every day. They beat me all over my body; when they had me hanging upside down, they used me like a punching bag. That happened every day. Now I have a migraine because I spent so much time upside down. I have tremors, headaches. They used electric prods all over my body.
Then they raped me. Over three days. It was toward the end of the period.   The first day, fifteen of them raped me; the second day, six; the third day, four. There was a bag on my head every time.  
Nuri, sobbing, showed us scars above his hands. "I tried to cut my wrists with a plastic spoon after the rapes."
There was one officer among the nine who tried to help. He was part of the torture team. But he said he had avoided sending the police report on me to the judge who he said would pass the sentence. He told me he would save my life if I gave him a five thousand dollar bribe.
One day, they took me up to the top floor, where there was a little window, straight onto the courtyard. They gave me binoculars to look. I could see:  there were the five men from the cell when I was first arrested. They were lying dead. They'd been executed. 
Then they showed me a piece of paper and said it was the court order for their execution. I said, give me the phone. And I called my friend in London.[69]

The friend in London sent money to an acquaintance of Nuri in Baghdad, who gave it to the officer.

After that, at 3 a.m. one night, the officer came and gave me army fatigues, and a head mask-a baklava where you could only see my eyes. There are rotations of guards, where some come and go, and I escaped by leaving with the soldiers-I was limping because of the torture but he showed me how to walk like a soldier so I couldn't be suspected. He took me out and put me in the trunk of a car and dropped me off on some road on the edges of the city. I walked for three hours after that. 

When he asked me for a bribe, I thought he would take it and kill me. I didn't believe I was going to live until I got out of the trunk of the car.

[60]Criminal Code: Law Number 111 of 1969 and its Amendments (Third Edition), ed. Nabeel Abdelrahman Hiyawi (Baghdad: Legal Library, 2008). Amnesty International has reported that in November 2001, as part of a moral cleansing campaign, the Revolutionary Command Council (RCC)-the country's highest executive body under the Saddam regime-"issued a decree to provide the death penalty for the offences of prostitution, homosexuality, incest and rape." ("Iraq" in Amnesty International Annual Report 2002: The State of the World's Human Rights.)  Human Rights Watch has been unable to find the exact text of this decree. Amnesty International believes the decree was temporary (email to Human Rights Watch from an Amnesty International researcher, June 11, 2009), and in any case Revolutionary Command Council decrees are no longer in force under Iraq's post-invasion government.

[61]Criminal Code: Law Number 111 of 1969 and its Amendments (Third Edition), ed. Nabeel Abdelrahman Hiyawi (Baghdad: Legal Library, 2008). 

[62] Reporters Sans Frontieres, "Doctor Jailed in Kurdistan for Writing about Homosexuality," December 2, 2008. Kurdish Regional Government president Masoud Barzani freed Hussein two weeks later as part of a seasonal spate of pardons: Reporters San Frontieres, "Kurdish President Pardons Doctor who Was Jailed for Writing about Homosexuality," December 8, 2008, both at http://arabia.reporters-sans-frontieres.org/article.php3?id_article=29508, accessed May 2, 2009.

[63]Timothy Williams and Tareq Maher, "Iraq's Newly Open Gays Face Scorn and Murder," New York Times, April 8, 2009.

[64] Human Rights Watch interview with Samir (not his real name), Iraq, April 24, 2009.

[65]Human Rights Watch interview with Mashal (not his real name), Iraq, April 20, 2009.

[66]Human Rights Watch interview with Haytham (not his real name), Iraq, April 13, 2009.

[67]Human Rights Watch interview with Wahid (not his real name), Iraq, April 23, 2009.

[68]This quotation and those following are from Human Rights Watch interviews with Nuri (not his real name), Beirut, Lebanon, April 15 and 27, 2009.

[69]Although Nuri says the officers called the paper a "court order," he did not see it, nor did the police say what alleged crime had led to the death sentence. Secret executions by judicial sentence have apparently been widespread in Iraq since 2003.   (See for instance Brian Bennett, "The Secrets of Iraq's Death Row," Time, November 12, 2006, http://www.time.com/time/magazine/article/0,9171,1558285,00.html, accessed May 3, 2009.)However, if the men were executed judicially, it is not clear what the charges might have been.Among the laws listed above-ones that might be invoked against homosexual conduct or against rights defenders addressing gender or sexual orientation-the highest penalty (under paragraph 200) is seven years' imprisonment.

In April 2009, Iraqi LGBT shared with Human Rights Watch a copy of a note allegedly smuggled out of an Iraqi detention center. The writer said Ministry of Interior forces had arrested him:

They beat me heavily and asked me strange questions. They spoke badly to me and kicked me on my head and my buttocks to elicit false information from me because of my membership in Iraqi LGBT. They then transferred me to the criminal court in al-Koukh and after an extremely speedy trial they sentenced me to death without giving me the opportunity to defend myself or appoint a lawyer. .. Two days later they informed me that the execution will take place in the next two weeks. …  I send you this appeal, is there anyone who can help me before it is too late? (Scan of the note, in Arabic, on file with Human Rights Watch)

The note was not dated and did not mention the charges (if the victim even knew them). Iraqi LGBT also told us they had received, from Baghdad sources, the names of four other Iraqis also detained and facing death. It is possible that this information dated back to February and that these five were the men whose corpses Nuri saw.

Human Rights Watch wrote to the Iraqi Ministry of Interior and Ministry of Human Rights on April 3, asking urgently for information about the five men's whereabouts and fates. We did not receive a reply.

If the note is authentic, it still cannot be confirmed that the "trial" was an actual judicial process-or that the "court order" police flashed before Nuri was real. These may have been extrajudicial killings carried out by Ministry forces.

On March 27, 2009, Iraqi LGBT went public with the information in that note, to forestall what it believed were the pending executions of the five. It warned that "Urgent action is needed to halt the execution of 128 prisoners on death row in Iraq. Many of those awaiting execution were convicted for the 'crime' of homosexuality" (Iraqi LGBT, "Stop Executions of Gay Iraqis: Members of Iraqi LGBT Group on Death Row: Action Needed to Halt Judicial Executions," March 27, 2009, at http://iraqilgbtuk.blogspot.com/, accessed May 29, 2009). These numbers came from an alert issued earlier that month by Amnesty International, on the imminent execution of 128 convicts in Iraq (Amnesty International, "128 Face Execution in Batches of 20," March 12, 2009, at http://www.amnesty.org/en/for-media/press-releases/iraq-128-face-execution-batches-20-20090312, accessed May 4, 2009). Amnesty had no indication that any of those men were accused of homosexual conduct. Nonetheless, Iraqi LGBT-which had not spoken to Nuri since his release-assumed that the five were alive and among the larger number on death row.

Based on the evidence, Human Rights Watch concludes that if the five named by Iraqi LGBT were executed, it happened earlier, when Nuri was arrested in February. However, the Iraqi LGBT news release, claiming that "many" of the 128 had been convicted of "homosexuality," inadvertently led to confusion among activists and bloggers in the US and Europe.   A petition was launched "to save the lives of 128 prisoners sentenced to death because they are homosexual," and the false claim that all those on death row were "gay" received wide currency. (See Everyone Group, "Petition to save the lives of 128 homosexuals sentenced to death in Iraq," April 3, 2009, http://www.everyonegroup.com/EveryOne/MainPage/Entries/2009/4/3_Petition_to_save_the_lives_of_128_homosexuals_sentenced_to_death_in_Iraq.html, accessed April 14, 2009). Iraqi LGBT soon clarified that it believed only five of the 128 were "gay." However, the misimpression still spread.