LGBT rights in Iraq

Homosexuality has been decriminalized - but is still considered a taboo by the majority of the population in Iraq. Many LGBT people in the country suffer from discrimination, abuse, honor killings and murder. There are even allegations that uniformed Iraqi police officers have carried out lethal attacks on homosexuals. As a result some LGBT human rights groups have described Iraq as one of the world's most dangerous places for LGBT people to live.

Criminal code: Ba'athist

The criminal code of 1969 (as amended) was silent on the subject of homosexual relations between consenting, non-commercial, non-fraternal, adults in private. This status appears to have continued in Iraq under Saddam Hussein, though no support groups or human rights organizations for LGBT people existed and gay and bisexual men were often harassed, murdered or blackmailed into becoming spies for the regime because of both the prevailing anti-gay social prejudice as well as vague laws dealing with public morality and national security. In the summer of 1993 compulsory religious education was introduced into Iraqi schools. Nightclubs accused of harboring prostitutes were closed and the constitution was amended to include the death penalty for homosexuality.

In the United Nations, the Iraqi delegation cited religion at the time as their reasoning for opposing efforts to have the international body support gay rights, once again shattering the widely held view of Saddam as a secularist.

Laws were enacted reducing (or even eliminating) the penalties for the practice known as "honor killings" in the period between the early 1990s and 2003, and thus an Iraqi could face being murdered by their kin with relative impunity for bringing dishonor to their family. In practice many such incidents did not result in criminal proceedings being brought against the alleged perpetrator. The two major targets of honor killings were women, deemed to be immoral, as well as LGBT people by the Fedayeen Saddam also acting as a sort of Mutaween (religious police) with the public decapitation of 200 prostitutes in October 2000 and stonings and throwing from buildings (the sharia punishments) people for sodomy.

In 2001, the IRCC Resolution 234 of 2001 was enacted that established the death penalty for adultery, being involved with prostitution, and anyone who, "Commits the crime of sodomy with a male or female or who violates the honor of a male or female without his or her consent and under the threat of arm or by force in a way that the life of the victim (male or female) is threatened"

While this law has been cited, by some international groups, as a ban on homosexuality, this Resolution would seem to only prohibit homosexual or heterosexual sodomy that did not involve consent or that did involve adultery or prostitution.

Criminal Code: Post Ba'athist

Private, non-commercial, non-fraternal homosexual relations between consenting adults, who have reached the age of eighteen years, would appear to be legal. Likewise nothing is expressly said about cross-dressing, unless used for deception.

Yet, several provisions of the current criminal code may impact the legal rights of LGBT people, although the penal code is still, technically, silent on the subject of homosexuality and cross-dressing.

Paragraph 215 - Any person who produces, imports, exports or obtains a picture, written material or sign with intent to trade, distribute, display or exhibit such material, which, by its nature, endangers the public security or brings the country into disrepute unless he was acting in good faith is punishable by detention plus a fine not exceeding 300 dinars or by one of those penalties.

Paragraph 220 - If five or more people are assembled in a public place, thereby endangering the public security and the public authorities order them to disperse, any person who is given that order and refuses to comply with it is punishable by a period of detention not exceeding 1 year plus a fine not exceeding 100 dinars or by one of those penalties.

Paragraph 376 - Any person who obtains a marriage certificate knowing it to be invalid for any reason in secular or canonical law and any person who issues such certificate knowing the marriage to be invalid is punishable by a term of imprisonment not exceeding 7 years or by detention. The penalty will be a term of imprisonment not exceeding 10 years if the spouse, in respect of whom the reason for the invalidity has arisen, conceals that fact from his partner or consummates the marriage on the basis of the invalid certificate.

Paragraph 401 - Any person who commits an immodest act in public is punishable by a period of detention not exceeding 6 months plus a fine not exceeding 50 dinars or by one of those penalties.

Paragraph 402 - (1) The following persons are punishable by a period of detention not exceeding 3 months plus a fine not exceeding 30 dinars or by one of those penalties: (a) Any person who makes indecent advances to another man or woman. (b) Any person who assails a woman in a public place in an immodest manner with words, actions or signs.

Paragraph 403 - Any person who produces, imports, publishes, possesses, obtains or translates a book, printed or other written material, drawing, picture, film, symbol or other thing that violates the public integrity or decency with intent to exploit or distribute such material is punishable by a period of detention not exceeding 2 years plus a fine not exceeding 200 dinars or by one of those penalties. The same penalty applies to any person who advertises such material or displays it in public or sells, hires or offers it for sale or hire even though it is not in public or to any person who distributes or submits it for distribution by any means. If the offense is committed with intent to deprave, it is considered to be an aggravating circumstances.

Paragraph 404 - Any person who himself or through some mechanical means sings or broadcasts in a public place obscene or indecent songs or statements is punishable by a period of detention not exceeding 1 year or by a fine not exceeding 100 dinars.

Paragraph 434 - Insult is the imputation to another of something dishonourable or disrespectful or the hurting of his feelings even though it does not include an imputation to him of a particular matter. Any person who insults another is punishable by a period of detention not exceeding 1 year plus a fine not exceeding 100 dinars or by one of those penalties. If such insult Is published in a newspaper or publication or medium it is considered an aggravating circumstance.

Paragraph 438 - The following persons are punishable by a period of detention not exceeding 1 year plus a fine not exceeding 100 dinars or by one of those penalties: (1) Any person who publishes in any way a picture, remark or information in respect of the private or family life of another, even though such information is true and such publication causes him offense. (2) Any person other than those mentioned in Paragraph 328 who is privy to information contained in a letter, telex or telephone conversation and he discloses such information to a person other than for whom it is intended and such disclosure causes harm to another.

Iraqi Personal Status Law

These are laws used in special courts designed to handle certain disputes among Iraqi Muslims.

Article 3 - Marriage is defined as a union between a man and a woman to create children.

Article 40 Section 2 - A legal separation may be granted if either spouse is unfaithful, with the act of homosexuality included as an example.

2003 Occupation of Iraq

When Coalition Provisional Authority chief executive Paul Bremer took control of Iraq in 2003 he issued a series of decrees that restored the Iraqi criminal code back to its original 1969 edition, abolished the death penalty (which the newly formed Iraqi government restored in 2005), and removed most restrictions on free speech and assembly.

On February 5, 2005 the IRIN issued a report titled "Iraq: Male homosexuality still a taboo." The article stated, among other things, that "honor killings" by Iraqis against a gay family member are common and given some legal protection. The article also stated that the 2001 amendment to the criminal code stipulating the death penalty for homosexuality "has not been changed", even through Paul Bremer clearly ordered the criminal code to go back to its original 1969 edition.

Since 2005 there have been reports that the Supreme Council for the Islamic Revolution in Iraq's Badr Organization has been involved in death squad campaigns against LGBT Iraqi citizens, and that they are supported in these policies by the Grand Ayatollah Ali al-Sistani.

These reports seem to stem from a fatwa issued by Iraqi cleric Grand Ayatollah Ali al-Sistani stating that homosexuality and lesbianism are both "forbidden" and that they should be "Punished, in fact, killed. The people involved should be killed in the worst, most severe way of killing".

Early drafts in English of the 2005 Iraqi constitution contained a provision that asserted that none of the rights or liberties protected in the Constitution would apply to "deviants". Later revisions of the Iraqi Constitution removed the deviants clause. Several clauses throughout the revised document assert that Islam will be the foundation of the law and that various civil liberties shall be limited by "public morality".44

International Concerns

The U.S. State Department raised concerns regarding equality and human rights in a statement released from the US Embassy in Baghdad. The letter said "In general, we absolutely condemn acts of violence and human rights violations committed against individuals in Iraq because of their sexual orientation or gender identity. This is an issue that we've been following very closely since we have been made aware of these allegations, and we are aware of the allegations.

"And the US embassy in Baghdad has raised, and will continue to raise, the issue with senior officials from the government of Iraq, and has urged them to respond appropriately to all credible reports of violence against gay and lesbian Iraqis."