August 17, 2009

VIII. Conclusion

Hamid said of the killers who had murdered his boyfriend: "They say that they are Muslims, but they have nothing of Islam. They use religion as a disguise to do what they want."[126]

If, as some believe, the killing campaign began as a way for militia forces to recuperate their reputations and gain the luster of defending morality, it has not worked. The invasions of privacy, the arbitrary murders, the brutality and torture have flouted religion and morals alike. They have left a growing number of Iraqis-even those who are not grieving their relatives and sons-appalled. In May 2009, one reporter wrote courageously in Sawt al-Iraq that the Mahdi Army "has once again sharpened its claws":

They are bullying civilians who have otherwise been safe, in various forms of oppression, discrimination, and killing ... Once again, they are intruding in every small and simple detail of everyday life; they prevent the people from practicing daily activities that are normal in most theocratic religious systems even in Saudi Arabia and Iran. ... Individuals are violated, assaulted, and encroached upon in an agonizing way. In addition to death threats against any man who grows his hair a couple of centimeters longer than the Sadri standards that are measured exactly and applied harshly, there are threats against those wearing athletic shorts or tight pants. ... These standards are being used simply as a justification for killing homosexuals. ...The slogan is to kill and kill, then kill again for the most trivial and simplest things.

And he concluded,

In the meantime, we know that God is kind and cannot be anything but merciful and loving to all beings. Even if he disapproves of certain people or creatures, as a father does with his children, in any religion he must be merciful. Religion should protect human life and should not call for killing people because they wear long hair or shorts...
Human beings came into existence before the birth of any ideology or religious beliefs. Thus, the holiness of life itself and the human being should be held above the holiness of any particular ideology or belief. It is illogical that the holiness of the ideology or belief created by human beings is more holy than human life itself.[127]

An 18-year-old who had been threatened with death, and knew several friends who had been killed, made much the same point when he told us:

God created people in all shapes and sizes. And you just have to accept that this exists. If you don't like gay people, you're free to condemn them; but you can't kill them. Don't talk to them. Don't associate with them. But don't massacre them. This is just wrong. It has to stop.[128]

International Law

The government of Iraqi has legal obligations under international human rights treaty law and customary law. It is bound by its own treaty commitments and those of previous Iraqi governments.[129]

Most notable among Iraq's treaty obligations are those laid out by the International Covenant on Civil and Political Rights (ICCPR), which Iraq ratified in 1971.[130] The ICCPR's protections place a mandate for action upon Iraqi authorities, including officials who bear responsibility for enforcing security and the law in Iraq.

The Right to Life and Security

Article 9 of the ICCPR affirms that "Everyone has the right to liberty and security of person."  (Similarly, the Arab Charter on Human Rights, adopted in 1994 by the Council of the League of Arab States, of which Iraq is a member, states in article 5 that "Every individual has the right to life, liberty and security of person. These rights shall be protected by law.") This right to security places an obligation on the Iraqi authorities not to ignore known threats to the life of people within their jurisdiction, and to take reasonable and appropriate measures to protect them.[131] It mandates them to act where there are clear and identifiable threats against individuals or groups-for instance, by fully investigating those threats with the aim of putting an end to them. The UN Human Rights Committee (charged with authoritatively interpreting the ICCPR and monitoring countries' compliance with it) has repeatedly found states in violation of their obligations under Article 9 if they have failed to take adequate steps to protect people in the face of repeated death threats. The Committee has also criticized states' failure to protect people from sexual-orientation-based violence.[132]

The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has noted that where the criminal justice system has failed to investigate murders based on sexual orientation or gender identity, the "state bears responsibility under human rights law for the many who have been murdered by private individuals."[133]

Protection against Torture and Inhuman and Degrading Treatment

The ICCPR prohibits any form of torture and inhuman treatment, in its articles 7 and 10. Iraq is also a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).[134]   The prohibition of torture is deeply rooted in customary international law. The Arab Charter on Human Rights also affirms, in its article 13, that "The States parties shall protect every person in their territory from being subjected to physical or mental torture or cruel, inhuman or degrading treatment. They shall take effective measures to prevent such acts and shall regard the practice thereof or participation therein, as a punishable offence."

The ICCPR and the Convention against Torture detail what states must do to enforce the prohibition, including the duty to investigate, prosecute, and provide effective remedies when violations occur. [135] The UN Human Rights Committee has also made clear that the duty to protect people against torture or inhuman treatment extends not only to acts by government officials, such as police, but also to acts inflicted by people in a private capacity.[136]

Non-Discrimination and Fundamental Rights

Article 2 of the ICCPR requires a state party to "ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind."Article 26 guarantees that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law." The UN Human Rights Committee has made clear on several occasions that sexual orientation is a status protected against discrimination under these provisions.[137]  Unequal protection against violence, and unequal access to justice, are prohibited under international law.

The ICCPR affirms the right to privacy (article 17), the freedom of expression (article 19), and the freedom of assembly (article 21). These rights entail the freedom to lead an intimate life peacefully; the freedom to express oneself, including one's gender identity, through clothes or comportment; and the freedom to move and meet in public without fear of harassment or assault. The state must protect people in the enjoyment of these rights. Persecution or harassment of people for exercising those freedoms must be prevented where possible, and punished where it occurs.

Iraqi laws regulating any of these rights can only impose such limitations as are consistent with international legal standards-that is, they must be strictly necessary to achieve a legitimate purpose. As the UN Human Rights Committee has advised, "Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected."[138] Any restrictions must also strictly observe the principle of non-discrimination.

No such restrictions should ever be used to penalize the work of human rights defenders, including those who take up issues of sexual orientation or gender identity. Both the Special Representative to the Secretary General on Human Rights Defenders and the UN Special Rapporteur on Torture have noted (in the former's words) the "greater risks ... faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretation of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be ... human rights groups and those who are active on issues of sexuality, especially sexual orientation ... These groups are often very vulnerable to prejudice, to marginalization and to public repudiation, not only by State forces but other social actors."[139]

Recommendations

Human Rights Watch makes the following recommendations to key actors:

To all militias including the Mahdi Army:

  • Cease all attacks against civilians and the civilian population, including people targeted because they do not correspond to norms of "masculinity," or are suspected of homosexual conduct;
  • Condemn such violence explicitly and publicly.

To political, cultural, and religious leaders in Iraq and other countries who have expressed support for militia and insurgent forces in Iraq:

  • Publicly condemn all violence against civilians and the civilian population, including violence against people targeted because they do not correspond to norms of "masculinity," or are suspected of homosexual conduct;
  • Publicly condemn militia groups that engage in such violence, and voice public support for the rule of law.

To the government of Iraq:

  • Investigate all reports of militia or other violence against people targeted because they do not correspond to norms of "masculinity," or are suspected of homosexual conduct, and appropriately punish those found responsible;
  • Publicly and expressly condemn all such violence;
  • Investigate whether ties continue between the Ministry of Interior and militias that have operated in the past as quasi-independent security forces under the Ministry's protection, including the Mahdi Army;
  • Investigate all claims of abuse by police or security forces, including abuses against people because they do not correspond to norms of "masculinity," or are suspected of homosexual conduct, and appropriately punish those found responsible;
  • Investigate and prosecute all Ministry of Interior officials involved in death squad killings or other unlawful acts, including torture, assault, and extortion;
  • Properly vet and train all police, security forces, and criminal justice officials, ensuring that this entails training in human rights inclusive of issues of sexual orientation and gender expression and identity, and establish effective monitoring and accountability mechanisms;
  • Take all appropriate measures to end torture, disappearances, summary killings, and other abuses, including abuses based on sexual orientation and gender expression and identity;
  • Repeal article 128 of the Criminal Code, which identifies  "The commission of an offence with honorable motives" as a "mitigating excuse";
  • Examine vague articles of the Criminal Code, including paragraphs 401, 402, 501, 502, and 200(2), that could justify arbitrary arrest or harassment of people due to their sexual orientation or gender expression and identity, or could be used to prevent civil society from addressing unpopular or stigmatized issues; repeal or modify them if necessary, or otherwise ensure that they are not applied in an arbitrary or discriminatory manner contrary to international human rights law;
  • Create and support an independent National Human Rights Commission;
  • Support the development of  domestic independent human rights non-governmental organizations with the capacity to monitor the full range of human rights violations, and ensure that they can operate without state harassment or interference;
  • Train all criminal-justice authorities in effective responses to gender-based violence against women and men;
  • Promote gender equality by embodying in legislation explicit guarantees for women's equal rights to marriage, within marriage, at the dissolution of marriage, and in inheritance.

To the US and the US-led multinational forces in Iraq:

  • Assist the government of Iraq wherever possible in investigating militia or other violence against people targeted because they do not correspond to norms of "masculinity," or are suspected of homosexual conduct;
  • End arbitrary detention without trial, including the arbitrary detention of suspected militia members; provide appropriate services to released detainees to assist them to reintegrate into society and ensure that they do not return to violence;
  • Assist the Iraqi government with vetting and training police; ensure that all training programs contain a human rights component and that human rights standards relating to privacy, protection against torture, and other relevant issues are explicitly treated as containing no exceptions for sexual orientation and gender expression and identity.

To the governments of all states in the region:

  • Ensure that no Iraqi refugees are subject to refoulement, either at the border (by refusing to grant access) or after entering the host country;
  • Ensure that all government agencies treat all Iraqi refugees within your borders with dignity and respect for their human rights, without exceptions, including exceptions based on sexual orientation or gender identity. 

To the UN High Commission for Refugees:

  • In coordination with the United Nations Assistance Mission to Iraq, closely monitor and report on attacks and abuses based on sexual orientation and gender expression and identity in Iraq;
  • Intervene actively to protect lesbian, gay, bisexual, and transgender asylum seekers and refugees from abuse in countries of first asylum within the region, and to prevent any threatened refoulement;
  • Secure rapid resettlement of those refugees in countries outside the region, with the active cooperation of countries of first asylum and resettlement countries.

To other concerned governments and international agencies:

  • Insist that all states in the region treat lesbian, gay, bisexual, and transgender Iraqis fleeing the country in full accordance with international standards;
  • Recognizing that lesbian, gay, bisexual, and transgender Iraqi refugee claimants are in situations of legal danger and face severe social prejudice in all surrounding countries, provide rapid and where necessary accelerated resettlement in third countries;
  • Assist with legal reform in Iraq in accordance with all international human rights standards, including those relating to sexual orientation and gender identity;
  • Monitor and assist the performance of criminal justice, police, security, and counterterrorism institutions and personnel in Iraq to ensure full compliance with international human rights standards;
  • Support the development in Iraq of an independent National Human Rights Commission and local independent human rights non-governmental organizations with the capacity to monitor the full range of human rights violations.

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

[127] Mahdi Qassim, "Nothing New Under the Darkness of the Sadrists," Sawt al-Iraq, May 11, 2009,

http://www.sotaliraq.com/printerfriendly-articles.php?id=39044, accessed May 15, 2009.

[128] Human Rights Watch interview with Tariq (not his real name), Iraq, April 18, 2009.

[129]The Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 115 U.N.T.S. 331, establishes that obligations under international agreements are not terminated by a change in government.

[130] The International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316, 999 U.N.T.S. 171, December 16, 1966.

[131] See, for example, Communications nos. 195/1985, Delgado Páez v. Colombia, adopted July 12, 1990; 314/1988, Bwalya v. Zambia, adopted July 14, 1993; 468/1991, Oló Bahamonde v. Equatorial Guinea, adopted October 20, 1993; 449/1991, Mojica v. Dominican Republic, adopted August 10, 1994; 916/2000, Jayalath Jayawardena v. Sri Lanka, adopted July 26, 2002; 859/1999, Vaca v.Colombia, adopted April 1,  2002; 821/1998, Chongwe v. Zambia, adopted November 9, 2000; and 1250/2004, Arachchige Lalith Rajapakse v. Sri Lanka, adopted September 5, 2006.

[132]  Ibid.,  and Human Rights Committee, "Concluding Observations: El Salvador," CCPR/CO/78/SLV, July 22, 2003, para. 16.

[133] "Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mission to Guatemala," A/HRC/4/20/Add.2, February 19, 2007.

[134] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987. Iraq's Presidency Council on August 17, 2008 approved a parliamentary decision to accede to the Convention against Torture. See http://www.iraqipresidency.net/news_detial.php?language=arabic&id=6067&type=news, accessed July 10, 2009.

[135]See for example Communication no. 322/1988, Rodriguez v Uruguay, adopted July 14, 1994; 328/1988, Blanco v Nicaragua, adopted July 20, 1994; 1096/2002, Kurbanov v Tajikistan, adopted November 6, 2003.

[136]Human Rights Committee, "General Comment 20, Article 7" (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994).

[137] See Toonen v  Australia, Communication no. 488/1992, adopted April 4, 1994; Young v Australia, Communication no. 941/2000, adopted September 18, 2003. The Human Rights Committee has also urged states to pass anti-discrimination legislation that expressly includes sexual orientation, and to prohibit in their constitutions all discrimination based on sexual orientation and gender identity.   Human Rights Committee, "Concluding Observations: Slovakia," CRC/C/SVK/CO/2, June 8, 2007, para. 28; "Concluding Observations: Namibia," CCPR/CO/81/NAM, July 30, 2004, para. 22; Concluding Observations: Trinidad and Tobago, CCPR/CO/70/TTO, November 3, 2000, para. 11; "Concluding Observations: Poland," 66th Session, CCPR/C/79/Add.110, para. 23.

[138]General Comment 16/32, in ICCPR/C/SR.749, March 23, 1988, para. 4. See Toonen v. Australia, para. 8.3.

[139] "Report of the Special Representative to the Secretary General on Human Rights Defenders," UN Doc. E/CN.4/2001/94 (2001), at para. 89g; cited in "Report of the Special Rapporteur on the Question of Torture and other Cruel, Inhuman and Degrading Treatment or Punishment," UN General Assembly, A/56/156, July 3, 2001.