We write in advance of the 74th pre-sessional review of the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) relating to Iraq’s compliance with the convention. This submission addresses issues related to articles 2, 3, 10, 15 and 16 of the convention and suggests questions to put to the Iraqi government.  

1.     Yezidi Women and Girls Subject to Abuses by ISIS (CEDAW articles 2, 3 and 16)

Human Rights Watch and other organizations documented a system of organized rape, sexual slavery, and forced marriage by Islamic State (also known as ISIS) forces of Yezidi women and girls.[1] However, in our research we found no case where an ISIS member has been prosecuted or convicted for those specific crimes. Moreover, the crimes committed against Yezidi women and girls amount to war crimes and possibly crimes against humanity or genocide against the Yezidis. However, Iraq does not criminalize war crimes, crimes against humanity or genocide. ISIS suspects are instead charged with violating provision 4 of the counterterrorism law, primarily for ISIS membership, support, sympathy, or assistance.[2]  

However, this approach makes it less likely that the process will establish a more comprehensive judicial record of the crimes committed, and gather the evidence of these crimes from witnesses and victims. The overreliance on counterterrorism laws also makes it less likely that the process will prioritize and punish the most serious offenses committed by ISIS.

Iraqi judges have told Human Rights Watch that provision 4 is all-encompassing and indirectly includes crimes such as rape and other crimes committed by ISIS members.[3] They have also justified not bringing additional charges by stating that victims don’t come forward to file complaints and the courts lack the capacity to identify victims.1 This is despite large amounts of documentation by various organizations of crimes against victims including interviews and forensic tests undertaken for instance by the Committee of Gathering Evidence of ISIS’s crimes (Genocide Committee). Even in cases in which defendants have admitted to subjecting Yezidi women to sexual slavery, prosecutors have still neglected to charge them with rape, which carries a sentence of up to 15 years.  Moreover, victims of ISIS abuse, including Yezidis, have not been able to participate in court proceedings.

In June 2017, a Judicial Investigation Board for Crimes Against the Yezidis was reportedly established to investigate crimes committed against them by ISIS. However, key Yezidi groups say they have never heard the work of this body.

Yezidi victims have also had serious violations against their privacy and may be interrogated instead. For instance, on March 29, 2018, Iraqi security forces in Baghdad apprehended an alleged ISIS member and freed his 15-year-old female Yezidi captive.[4] The day she was freed, footage of her interview by Iraqi intelligence was posted on Facebook, deliberately failing to protect her identity. In the interview, her interviewer badgered her with questions of why she didn’t escape and report her captor’s ISIS ties.1

ISIS victims need supportive programs that will aid in helping them receive medical help, mental health services, and initiatives that give survivors the means to earn their livelihoods. There is some limited psycho-social assistance for survivors of violence but, this could be strengthened.

While the Yezidi community leaders have welcomed back women and girl victims of ISIS, there has been more reluctance of accepting children born of rape. Some families have told women to leave such children, forcing women to either abandon their children during escape or to remain with their children and unable to return to their families or communities.

We encourage the Committee to pose the following questions to the Iraqi government:

  • Have the authorities prosecuted any member of ISIS with rape or sexual slavery? If so, please provide information relating to number of prosecutions, convictions and sentencing.
  • Can authorities provide a report on the work of the Judicial Investigation Board for Crimes Against the Yezidis thus far, and the extent to which it has supported any specific prosecutions?
  • Do the authorities plan on criminalizing war crimes, crimes against humanity and genocide?
  • What steps have the authorities taken to investigate specific ISIS crimes including allowing for access of victims to report, provide witness statements and be involved in court proceedings?
  • What measures are the authorities taking to ensure the privacy of victims of ISIS abuses and to provide a gendered-responsive manner of receiving victims of ISIS abuses? 
  • What measures are the authorities taking to combat stigma of children born of rape including ensuring an action plan to help women and children reintegrate?

2.     Detention of Non-Iraqi Female Relatives of ISIS Members (CEDAW articles 2, 15 and 16)

ldren who are foreign nationals and accused of affiliation with ISIS have been subjected to rushed proceedings, lack of due process, and unfair convictions and sentences. Most of the foreign women and children held in Iraq belong to a group of more than 1,300 foreigners detained by Iraqi forces last August during the battle for the ISIS stronghold of Tal Afar in the northwest of Iraq. A security source told AFP news agency that the group was composed of 509 women and 813 children, though the overall number of foreign women and children in detention is believed to be higher based on information from sources close to the penitentiary system in Baghdad.[5] Prime Minister Haider al-Abadi stated in an interview with Associated Press News in September 2017 that most of the women and children were not guilty of a crime, and his government was in the process of returning the detainees to their home countries. However, in January 2018, the Iraqi government proceeded to prosecute women and children ages 9 and up.[6]

Foreign national children under age 3 are usually kept in jail with their mothers in often overcrowded cells. Those between 3 and 9 are usually separated from their detained mothers and put in foster institutions run by the Iraqi state. Those between 9 and 18 are held in juvenile detention facilities, a lawyer following the cases told Human Rights Watch. Foreign orphans are kept in local orphanages. Some foreign children have been transferred to their home countries while many others are still waiting to be transferred.[7]

A relative of one woman held with her 2-year-old child for months in an airless leaking cell near Mosul with about 25 other women told Human Rights Watch: “The food they were getting was barely enough to keep them alive. Many were sick but no doctor ever came to see them. One of [her fellow] inmates gave birth right in the cell.”[8]

In cases reviewed by Human Rights Watch, defence lawyers  assigned to detainees by Iraqi law rarely had access to their clients before hearings and translators were seldom granted to detainees. In addition, Iraqi judges appeared to dismiss, without consideration, of defendants’ claims of not officially supporting ISIS and coercion. The lack of robust investigation into the detainees’ individual contributions to ISIS abuses indicate a further denial of due process and justice.

Trials that occurred before proceeding to the standard three-judge panel in Iraqi criminal proceedings, as witnessed by Human Rights Watch, only lasted several minutes with presiding judges asking the detainees general questions regarding their entry into Iraq, money received from ISIS, their husbands’ locations, and conviction to ISIS ideology. On the same day as the trials, life (20 years) and death penalty sentences were issued in almost all cases reviewed by Human Rights Watch.

Some women have told judges that they were coerced into coming to Iraq, but as far as Human Rights Watch has observed, judges have ignored and refused to investigate such claims. [9]

As of June 2018, Iraq has conducted 400-500 trials of children accused of affiliation with ISIS and illegal entry into Iraq.5 Children prosecuted for illegal entry receive sentences of six months to 1 year; conviction of ISIS membership results in three to five years in Iraqi prison and between five and fifteen years for further participation in violent acts.

We encourage the Committee to pose the following questions to the Iraqi government:

  • What measures are the authorities taking to examine specific crimes committed by women as opposed to prosecution on charges such as ISIS membership or illegal entry but which are essentially are due to their relation to ISIS members or suspected ISIS members?What measures are the authorities taking to ensure adequate legal representation for women and children, and adequate t
  • ranslation for non-Arabic speakers?
  • What measures are the authorities taking to repatriate children who have been prosecuted after they have served their sentences?

3.     Violence Against Women Including Domestic Violence and Honor Killings (CEDAW articles 2, 3, and 16)

Domestic violence remains a serious problem in Iraq. The Iraq Family Health Survey (IFHS) 2006/7 found that one in five Iraqi women are subject to physical domestic violence.[10] A 2012 Ministry of Planning study found that at least 36 percent of married women reported experiencing some form of psychological abuse from their husbands, 23 percent to verbal abuse, 6 percent to physical violence, and 9 percent to sexual violence.[11]

While the Iraqi constitution expressly prohibits “all forms of violence and abuse in the family,” only the Kurdistan Region of Iraq has a law on domestic violence.[12] Iraq’s Anti-Violence against Women Strategy (2013-2017), adopted in March 2013, and the National Strategy on Advancement of Women in Iraq, adopted in 2014, both called for legislation on domestic violence/violence against women.

Despite the UN Committee on the Elimination of Discrimination Against Women’s in its concluding observations on Iraq in 2014 calling on the authorities to “review the draft law on domestic violence with a view to ensuring that penalties are imposed on perpetrators of violence against women and harmonize the Penal Code and the Code of Criminal Procedures accordingly,” this has not been done.[13] 

Iraq’s criminal code does not criminalize domestic violence and only general provisions relating to assault could apply in such instances. However, several provisions in the criminal code enable impunity for violence against women including domestic violence.

Article 41(1) of the Penal Code provides that “the punishment of a wife by her husband, the disciplining by parents and teachers of children under their authority within certain limits prescribed by law or by custom” is the exercise of a legal right and as such, is not a crime. In addition, the Penal Code also provides for mitigated sentences for violent acts including murder for so-called “honorable motives” or if catching his wife or female relative in the act of adultery/sex outside of marriage.[14] The Penal Code also allows perpetrators of rape or sexual assault to escape prosecution or have their sentences quashed if they marry their victim.[15]

The draft anti-Domestic Violence law, originally introduced in the Iraqi parliament in 2015 and further amended in 2016, remains pending. The strengths of the draft bill include provisions for services for domestic violence survivors, protection orders (restraining orders), and penalties for their breach, and the establishment of a cross-ministerial committee to combat domestic violence.

However, the bill has several gaps and provisions that would undermine its effectiveness. One of the major problems with the draft law is that it prioritizes reconciliation over protection and justice for abused victims. One of the goals of the draft law is to “work on family reconciliation to protect families and the society as a whole.”[16]  The draft law calls for the parties to be referred to family reconciliation committees and for prosecutions of abusers to be dropped if reconciliation is reached.[17] But women in Iraq are often under tremendous social and economic pressure to prioritize the family unit over their own protection from violence.

While the draft law defines domestic violence as a crime, it fails to set penalties. It also does not repeal provisions in the Iraqi Penal Code that condone domestic violence although parliamentary members amended the draft to provide that the Anti-Domestic Violence Bill would override all legal provisions that contradict it.

Furthermore, the draft law, does not refer to police officers or outline concrete duties for police officers in responding to cases of violence against women, other than the Department of Family Protection (which sit in many police stations). This is a critical omission as police can play an important role in responding to domestic violence, and can help determine whether a victim is able to pursue remedies through the justice system or is ignored.

The draft law does provide for protection orders: an important mechanism in the fight against

domestic violence. However, the draft law does not distinguish between short-term emergency protection orders and longer-term protection orders, as recommended by the UN Handbook on Legislation on Violence against women.[18] Article 18(1) of the draft law allows investigative judges on domestic violence to issue a protection order which offers victims up to 30 days of “protection” from the suspected perpetrator, and which can be renewed. The draft law originally allowed for an extension of the protection order for up to 180 days in certain cases, but this was deleted in 2016 to allow judges discretion. However, this means that women will be required to repeatedly seek orders for protection which may cause undue delays in receiving protection.

According to a 2014 UNAMI Human Rights Office report, there are very few working shelters and many victims of domestic violence are often sent to temporarily stay in female prisons.[19] A recent proposed amendment to the draft law would provide for the establishment of government shelters in coordination with local women’s rights organizations. The bill should ensure that these groups can administer, provide training, and operate the shelters, and permit the establishment and operation of privately-run shelters for survivors of domestic violence. This is particularly important given that women’s rights organizations with such shelters, have often been physically attacked and threatened by offenders and have faced hostility from some government officials.

We encourage the Committee to pose the following questions to the Iraqi government:

  • Has Iraq taken any steps to amend the penal code to repeal provisions that allow for stopping of prosecutions or reduction of sentences in cases of violence against women such as articles 41(1), 128(1), 398, and 409 of the Penal Code?
  • Is Iraq undertaking any national studies or compiling statistics on violence against women including on domestic violence?
  • Please provide data on the number of prosecutions and convictions made in relation to domestic violence including a breakdown of the crimes. Have the authorities ever prosecuted or convicted anyone for marital rape under the existing penal code on rape?
  • What is the current status of the draft anti-domestic violence law? Are Iraqi authorities considering amendments to ensure that it is in line with international standards to adequately prevent domestic violence, prosecute abusers, and assist survivors? Are the authorities working with civil society on amending the law before resubmitting it to Parliament?
  • How many shelters currently exist in mainland Iraq and what assistance or security are the authorities providing for non-governmental shelters?

4.     Protection of Education During Armed Conflict (CEDAW article 10)

According to the Global Coalition to Protect Education from Attack, at least 350 schools were damaged or destroyed in Iraq between 2013 to 2017, and at least 100 teachers and 60 students were killed, injured, threatened, or abducted. There were also at least 70 reported attacks on higher education facilities, students, and personnel. Dozens of schools and universities were used for military purposes by parties to the conflict.[20]

The majority of violence against students, teachers, and education personnel occurred in areas of Iraq under the control of ISIS. For example, on December 9, 2015, ISIS reportedly tortured and killed a female secondary school teacher in Mosul city for purportedly refusing to teach the group’s curriculum.[21] On January 15, 2016, according to the United Nations Assistance Mission for Iraq (UNAMI) and OHCHR, ISIS burned three female teachers to death in Mosul after accusing them of providing information to the Iraqi Security Forces (ISF).[22]

However, other armed groups also carried out attacks. For example, Iraq’s Ministry of Education reported that in January 2017, a group of soldiers in the Iraqi army attacked teachers and other education personnel at a girls’ school in Anbar province.[23]

UNICEF reported in June 2017 that in the areas of Iraq most affected by conflict, more than 90 percent of children were out of school.[24] Human Rights Watch found that families had stopped sending their children to school in areas controlled by ISIS because of changes the group made to the curriculum, fears about indoctrination, concern that schools would be struck in air strikes targeting fighters inside the schools, and a lack of qualified teachers.[25]

Girls and women were uniquely targeted because of their gender, not only as victims of sexual violence but also where armed groups opposed female education. Although ISIS permitted girls under the age of 15 to attend school, the group segregated the classrooms and its curriculum promoted gender stereotypes.

ISIS used schools to detain, rape, and sell women and girls. UNAMI and OHCHR reported that from September through December 2014, for example, ISIS held a group of women and girls at an abandoned school in Tal Afar. Some were reportedly raped.[26]

In 2016, Human Rights Watch also documented that ISIS was detaining many women and girls in schools, moving them between Iraq and Syria, keeping them in sexual slavery, raping them, and buying and selling them in slave markets in cases of “systematic rape.”[27]

A UN commission of inquiry determined that sexual violence committed against Yezidi women and girls by ISIS, such as using schools as sites to sell women and girls into sexual slavery, were acts of genocide.[28]

Iraqi forces, Peshmerga forces (Kurdish military forces), and other armed groups have also used schools and universities for military purposes, such as bases, detention centers, and screening centers.

For example, in December 2016, Human Rights Watch documented that a Yezidi militia was using a boys’ secondary school in Khanasoor as barracks.[29]

Al Fanar Media reported that Iraqi forces used Anbar University in Ramadi as a military base from 2015, when they retook the campus from ISIS, until September 2016. ISIS had previously looted the university’s labs, and fighting between ISF and ISIS had caused extensive damage to many of the buildings.[30]

Human Rights Watch found that in late April 2017, the Popular Mobilization Forces (armed forces under the command of the prime minister) unlawfully detained at least 100 men in a school building and a home near Mosul, interrogating them about their connections to ISIS and torturing them.[31]

Human Rights Watch also documented that Peshmerga soldiers used a school in the village of Saleh al-Malih near Tal Afar in Nineveh governorate as a detention center for a period of several days in late August 2017. Women interviewed by Human Rights Watch described how Peshmerga forces beat the boys and men after separating them from the girls and women at the school. On August 28, 2017, a foreign woman detonated a bomb at the school as she was being checked by female Peshmerga soldiers, killing and wounding solders and displaced people, including one child and two women.[32]

On September 17, 2017, a bomb exploded at a school near Tal Afar, Nineveh governorate, according to media sources. The school was being used for training by tribal units within the Popular Mobilization Forces.[33]

Human Rights Watch interviewed women who reported that Iraqi forces detained them in a school in Hawija, Kirkuk governorate, on September 22, 2017. The detention occurred during Iraqi forces’ operation to retake Haqija from ISIS, and the women said the soldiers questioned them about the identity of villagers affiliated with ISIS.[34]

Iraq has not endorsed the Safe Schools Declaration, an inter-governmental international commitment to protect education in armed conflict. As of January 2019, 83 countries have endorsed the Safe Schools Declaration. The declaration includes a pledge to use the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.[35]

We encourage the Committee to pose the following questions to the Iraqi government:

  • What steps has Iraq taken in line with UN Security Council Resolution 2143 (2014) and 2225 (2015) to deter the use of schools for military purposes?
  • Are protections for schools from military use included in any policies, rules, or trainings for all of Iraq’s law enforcement, security and military forces?
  • What specific steps have been taken in order to protect women and girls and their right to education?
  • Will the Government of Iraq endorse the Safe Schools Declaration, thereby committing to use the Guidelines for Protecting Schools and Universities from Military Use in Armed Conflict?
 

[1] “Iraq: Forced Marriage, Conversion for Yezidis,” Human Rights Watch news release, October 2014, https://www.hrw.org/news/2014/10/11/iraq-forced-marriage-conversion-yezi... “Iraq: ISIS Escapees Describe Systematic Rape, Yezidi Survivors in Need of Urgent Care,” Human Rights Watch news release, April 14, 2015, https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systemat... Sarah Margon (Human Rights Watch), “ISIL’s Reign of Terror: Confronting the Growing Humanitarian Crisis in Iraq and Syria” testimony, Senate Foreign Relations Committee, December 9, 2014, https://www.hrw.org/news/2014/12/09/isils-reign-terror-confronting-growi... “Iraq: Protect Mass Graves, Evidence of Possible ISIS Genocide Endangered,” Human Rights Watch news release January 30, 2016, https://www.hrw.org/news/2016/01/30/iraq-protect-mass-graves; and Rothna Begum and Samer Muscati (Human Rights Watch), “Interview: These Yezidi Girls Escaped ISIS. Now What?”, April 15, 2015, https://www.hrw.org/news/2015/04/15/interview-these-yezidi-girls-escaped....

[2] Iraqi Counterterrorism Law, No. 13 of 2005.

[3] Human Rights Watch report, Flawed Justice: Accountability for ISIS Crimes in Iraq, December 2017,  https://www.hrw.org/report/2017/12/05/flawed-justice/accountability-isis-crimes-iraq#.

[4] “Yezidi Girl’s Freedom Opens Door to Justice in Iraq: Prosecute ISIS Members for Specific Crimes,” Human Rights Watch Dispatches by Belkis Wille, April 2, 2018, https://www.hrw.org/news/2018/04/02/yezidi-girls-freedom-opens-door-justice-iraq.

[5] “Iraq PM: Half of IS families detained near Mosul are Turkish,” Associated Press News, September 16, 2017, https://apnews.com/e15b0221b00b419fbba4f1f3a15d9d3f (accessed on March 1, 2019).

[6] “Iraq: Change Approach to Foreign Women, Children in ISIS-Linked Trials,” Human Rights Watch news release, June 21, 2018, https://www.hrw.org/news/2018/06/21/iraq-change-approach-foreign-women-children-isis-linked-trials.

[7] “Iraq: Change Approach to Foreign Women, Children in ISIS-Linked Trials,” Human Rights Watch news release, June 21, 2018.

[8] “Iraq: Change Approach to Foreign Women, Children in ISIS-Linked Trials,” Human Rights Watch news release, June 21, 2018.

[9] “Iraq: Change Approach to Foreign Women, Children in ISIS-Linked Trials,” Human Rights Watch news release, June 21, 2018.

[10] Republic of Iraq, “The Iraq Family Health Survey (IFHS) 2006/7,” 2008, http://www.who.int/mediacentre/news/releases/2008/pr02/2008_iraq_family_... (accessed March 6, 2017).

[11] Ministry of Planning Central Statistical Organization-CSO, “Iraq Women Integrated Social and Health Survey (I-WISH) Summary Report,” March 2012, pp. 47-48, http://reliefweb.int/sites/reliefweb.int/files/resources/IWISH%20Report%... (accessed March 6, 2017).

[12] Iraq Constitution, article 29; Domestic Law no. 8 Kurdistan Region of Iraq.

[13] CEDAW Committee, Concluding observations on the combined fourth to sixth periodic reports of Iraq, U.N. Doc. CEDAW/C/IRQ/CO/4-6, March 10, 2014, para. 18(d), http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?sy... (accessed March 6, 2017).

[14] Articles 128(1) and 409 of the Penal Code, Law No. 111 of 1969.

[15] Article 398 of the Penal Code, Law No. 111 of 1969.

[16] Article 3(2), draft Anti-Domestic Violence Law.

[17] Article 19, draft Anti-Domestic Violence Law.

[18] UN Women, “Handbook on Legislation on Violence against Women,” 2012, section 3.10.4 and section 3.10.5, http://www2.unwomen.org/~/media/headquarters/attachments/sections/librar... (accessed March 6, 2017).

[19] UNAMI Human Rights Office/OHCHR Baghdad, “Report on Human Rights in Iraq: January – June 2014,” August 2014, section 5.3, p. 14, http://www.ohchr.org/Documents/Countries/IQ/HRO_Jan-Jun2014Report_en.pdf (accessed March 6, 2017).

[20] GCPEA, “Education Under Attack 2018,” http://www.protectingeducation.org/sites/default/files/documents/eua_201... (accessed March 1, 2019).

[21] UN Secretary-General, “Report of the Secretary-General,” S/2016/360, para. 63.

[22] UNAMI and OHCHR, Report on the Protection of Civilians in the Armed Conflict in Iraq, November 2015-September 2016, p.11.

[23] Omar Al-Jaffal, “Iraqi teachers unsafe in own classrooms,” Al-Monitor, https://www.al-monitor.com/pulse/fa/contents/articles/originals/2017/01/... (accessed January 25, 2019).

[24] UNICEF, Nowhere to Go: Iraqi Children Trapped in Cycles of Violence, June 2017, p. 4.

[25] “Iraq: Women Suffer Under ISIS,” Human Rights Watch news release, April 5, 2016, https://www.hrw.org/news/2016/04/05/iraq-women-suffer-under-isis.

[26] UNAMI and OHCHR, Report on the Protection of Civilians, September 11-December 10, 2014, pp. 6,13-14.

[27] “Iraq: ISIS Escapees Describe Systematic Rape,” Human Rights Watch news release, April 14, 2015, https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systemat....

[28] Independent International Commission of Inquiry on the Syrian Arab Republic, “‘They came to destroy’: ISIS Crimes Against the Yazidis,” A/HRC/32/CRP.2, June 15, 2016, paras. 49-50, 124.

[29] “Iraq: Armed Groups Using Child Soldiers,” Human Rights Watch news release, December 22, 2016, https://www.hrw.org/news/2016/12/22/iraq-armed-groups-using-child-soldie....

[30] Gilgamesh Nabeel, “10 Iraqi Universities Rebuild In Wake of Islamic State,” Al Fanar Media, July 4, 2017.

[31] “Iraq: Scores of Men Imprisoned in Schoolhouse,” Human Rights Watch news release, May 22, 2017, https://www.hrw.org/news/2017/05/22/iraq-scores-men-imprisoned-schoolhouse.

[32] “Iraq/KRG: 1,400 Women, Children From ISIS Areas Detained,” Human Rights Watch news release, September 20, 2017, https://www.hrw.org/news/2017/09/20/iraq/krg-1400-women-children-isis-ar...

[33] Mohamed Mostafa, “Fifteen people killed in school bombing in Mosul,” Iraqi News, September17, 2017.

[34] “Iraq: Investigate Abuses in Hawija Operation,” Human Rights Watch news release, September 28, 2017, https://www.hrw.org/news/2017/09/28/iraq-investigate-abuses-hawija-opera...

[35] Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, March 18, 2014, http://protectingeducation.org/sites/default/files/documents/guidelines_en.pdf (accessed January 22, 2019).