LGBT rights in Iraq

Homosexuality was legal in Iraq under Saddam Hussein until late 2001, when under pressure from religious conservatives he criminalized the act of sodomy. A law passed in 2001 made sodomy punishable by imprisonment, and repeated convictions punishable by death. It should be noted however that despite the change in law there where no known cases in which the death penalty was applied for the offense by Iraqi Courts. Hussein had previously refused to criminalize homosexuality, as it went against the Secular Socialist beliefs of the Ba'ath Party (resource?).

The legal status of homosexuality remains something in dispute in a post-Saddam Iraq. Homosexuality is not de jure illegal in Iraq, but it is taboo. As of 2008, Iraq is in a de facto state of civil war and some militias have been known to seek out and kill homosexuals and transgender Iraqis.

Criminal code: Ba'athist
The authoritarian nature of the Ba'athist government makes it difficult to gather definitive information about what were the Ba'athist polices with regards to sexual orientation or gender identity. In the United Nations, the Iraqi delegation cited religion, despite being a secular state at the time as their reasoning for opposing efforts to have the international body support gay rights.

Yet, homosexual practices between consenting adults in private were not officially made illegal in Iraq until 2001, when it was made a capital crime. Prior to that point, Iraqi gays and bisexuals who lived during the 1980s - 1990s have since reported that a Ba'athist crackdown on homosexuality and establishments known to function as gay bars took place in the 1990s.

This is also around the same time that the Ba'athist regime lost the first Persian Gulf War, and faced an uprising in northern and southern Iraq, and this crackdown may have been part of a larger attempt by the government to appeal to Sunni and Shiite social conservatives as the early 1990s.

The practice known as honor killings were also legalized in the early 1990s, and thus a LGBT Iraqi could face being executed by their kin for bringing dishonor to their family.

Criminal code: Post-Ba'athist
In 2003, Paul Bremer ordered that the Iraqi Penal Code criminal code would revert to its 1969 edition, while the Iraqi civil code would revert to its 1972 edition. Bremer did not address the Iraqi religious courts of personal status. While the penal code does not explicitly deal with homosexuality or cross-dressing, it does contain provisions that could be used to punish such practices.


 * Some news reports about the legal status of homosexuality in Iraq had asserted that Paragraph 111 legalizes the practice of honor killings. However, the practice was expressly prohibited in the Iraqi criminal code prior to the 1990s.  Also most of the English, published versions of the Iraqi penal code seem to have been published sometime in the 1980s.


 * 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


 * Chapter 7 Section 7 Paragraph 368 - Any person who willfully commits an act which spreads a dangerous disease that endangers the lives of others is punishable by a period of detention not exceeding 3 years. The punishment is 1 year if it is ruled to be accidental.


 * Chapter 8 Section 4 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.


 * Chapter 8 Section 3 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.


 * Chapter 8 Section 3 Paragraph 402 - (a) Any person who makes indecent advances to another man or woman shall be punished by a period of detention not exceeding 3 months plus a fine not exceeding 30 dinars. The penalty will be a period of detention not exceeding 6 months plus a fine not exceeding 100 dinars if the offender, having been previously convicted for such offense, re offends within a year of the date of such conviction.


 * Chapter 8 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.  Also applies to those people that advertise such material or media.


 * Chapter 8 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 dishonorable 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.


 * 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.


 * Paragraph 501 - 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 is punishable by a period of detention not exceeding 10 days or by a fine not exceeding 5 Dinars.


 * Chapter 5 Paragraph 502 - Any person who loiters in a public place or observes such a place with indecent intent or for an indecent purpose is punishable by a period of detention not exceeding 10 days or by a fine not exceeding 5 dinars.

Paragraph 397 would appear to set the minimum age for sexual consent, for men and women, at eighteen. It is possible that another Paragraph, 396, prohibits adult, consensual and non-consensual anal sex, although it is difficult to determine with the available English translations. The paragraph contains "or" in between two crimes.

Militias
As of 2007, the two major Iraqi militias; the Badr Organization and the Mahdi Army are among those Iraqi Shiite militias that have been linked to the kidnapping and killing of Iraqis for homosexuality or being transgender.

Reports of the status of gay rights in Iraq and the militias "sexual cleansing" campaign surfaced in 2005 through IRIN reports, and articles by people such as University student Edward TJ Brown and reporters Peter Tatchell, and Doug Ireland. The issue was subsequently picked up by the gay press and some mainstream news sources such as the BBC, but has largely been ignored by the mainstream American press.

On February 5, 2005 the IRIN issued a reported 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.

In March, 2005 a rally was held in the United Kingdom, where speakers for the Iraqi Organizations For Women's Freedom opposed efforts by Iraqi religious parties to introduce Sharia law into Iraq and some mention was made that Sharia law would mean the death of women's rights along with the rights of gays and non-Muslims in Iraq. This Iraqi feminist organization is supported by the Iraqi Workers-Communist Party, but neither organizations will talk about gay rights issues in Iraq or answer inquires from foreigners about the issue.

The Iraqi Committee For Personal Privacy and Freedom has an online website that does support gay rights issues but it is unclear how influential this new Committee will be. A similar organization called the Iraqi Scientific Humanitarian Committee also exists online and claims to be an Iraqi gay rights organization.

On August 5, 2005 the IRIN issued a report on the rise of male teenage prostitution in Iraq, and the strong moral opposition to homosexuality in general. The report seems to suggest that even absent a specific criminal prohibition the parents or relatives of an Iraqi homosexual may try to kill them.

The United States Multi-National Security Transition Command in Iraq has been overseeing the Iraqi armed forces training and discipline and seems to have been interpreting Paragraph 402 as only applying to rape‏‎. This Command has also drafted a new military code for Iraq that will be introduced sometime after the Iraqi election. It is unknown if the new military code will bar Iraqi homosexuals from military service or make homosexual acts a crime under military law.

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 Iraqis citizens, and that they have gotten support for such policies by the Grand Ayatollah Ali al-Sistani

This is partly due to a fatwa issued in October, 2005 by Iranian-born Iraqi Shiite cleric Grand Ayatollah Ali al-Sistani, published on the Arabic portion of his homepage, 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.” While the fatwa for male homosexuality was removed from the website in May, 2006, it was not revoked. The fatwa for female homosexuality is still on the website.

Also in March of that same year, a gay Canadian peace activist named James Loney was kidnapped by an Iraqi militia and his family and the Canadian government kept his sexual orientation a secret for fear that his kidnappers would kill him.

In January 2007 members of the Iraqi Government criticized a report on the human rights situation in Iraq. One of the reasons that the government officials were critical of the report was because of its inclusion of gay rights in its review of human rights issues in Iraq.

Operation Iraqi Freedom
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 new formed Iraqi government restored in 2005), and removed most restrictions on free speech and assembly.

However, a 2004 article in the New York Times noted that homosexuality is still a crime in Iraq ("Killings Surge in Iraq, and Doctors See a Procession of Misery" by Alex Berenson, September 26, 2004);


 * "Besides doing autopsies, the doctors at the institute specialize in the examinations of women accused by their husbands of not being virgins when they married, a serious charge that can lead to an annulment. The doctors also examine men accused of homosexuality, a criminal offense in Iraq. They must also approve all marriages of girls 14 or younger, verifying that they have reached puberty and are physically capable of intercourse."

It is unclear, from the article, the context in which homosexuality is a crime or based on what part of the 1969 criminal code is being invoked. The Iraqi Interim Governing Council did enact a Resolution (soon repealed) giving Iraqi Muslim Courts of Personal Status more authority to settle disputes dealing with marriage, family and other religious matters and it is possible that homosexuality is being treated as a crime under Islamic Personal Status courts, although an English translation of the current Iraqi Law for Personal Status is not available online.

Iraqi elections of 2004
Some members of the Sunni insurgency, claimed that they were engaging in violence in order to prevent gay marriage from being legalized in Iraq. Yet, it is hard to take this justification at face value.

None of the Iraqi political parties have taken any statement in favor of gay rights. In fact the political parties often refuse foreign inquiries about where their political party stands on the topic of gay rights.

Iraqi Constitution
Early drafts (in English) of the Iraqi constitution contained a provision that asserts that none of the rights or liberties protected in the Constitution will apply to "deviants." Later revisions of the Iraqi Constitution appear to have remove the deviants clause, but have several clauses throughout the document that assert that Islam will be the foundation of the law and that the various civil liberties shall be limited by "public morality", i.e. Islam.

LGBT Iraqi Exiles
An exile association of LGBT Iraqis has been working with the British human rights organization, OutRage!, to make the international community more aware of the anti-gay death squad campaign.

Legal resources

 * Introduction To Iraqi Law
 * Iraqi Constitution of 1990 (English)
 * JURIST - Iraq
 * The Iraqi Criminal Code (English - 1988)
 * The Iraqi Criminal Procure Code (Arabic)
 * Iraqi Penal Code in English
 * Iraqi Government has an English translation of the Constitution online
 * Iraqi Special Tribunal: Has Translation of Criminal and Civil Code