Zhiar Ali is a Kurdish activist working on LGBTQI+ issues in Iraqi Kurdistan.
The people of Iraq are cursed with probably the worst level of self-expression and freedom of speech you can imagine. You might think it will not get any worse than it currently is—well, think again. If you live in Iraq as an LGBTQI+ individual, you already see the truth for yourself.
While the Iraqi law does not have any specific punishments for homosexuality, personal bias and corruption even affect the law. Most of the lawyers and judges find loopholes in the Iraqi laws that they can twist and use to prosecute members of the LGBTQI+ community as they please, because heterosexism is a thing, and so is conflict of interest. Worst of all, there is no one willing to address this dangerous scandal in Iraqi law.
Lawyers and judges have a conflict of interest mostly because of religious beliefs. The constitutional law of Iraq claims to be in support of freedom of speech, expression, and having a private life; however, it also claims that no freedom must conflict with Islamic morality. "Islam is the official state religion, and no law may be enacted or enforced that violates the undisputed teachings of Islam", the Iraqi Council of Representatives has made clear. Homosexuality in Islam is not only prohibited, but it's also punishable by death. This is why, ladies and gentlemen, we must always aim for secularism. The people of Iraq are now struggling to set themselves free from this statement that flames bias in court.
Iraqi Penal Code: Moral Indecency and Public Etiquette
Chapter 9 or the Iraqi penal code focuses on moral indecency and public etiquette. It also includes two sections that are widely used to detain LGBTQI+ people: Section 1 and Section 3.
Section 1: Rape, Buggery, Indecent Assault
The following article, as stated in section 1 of the 9th chapter of the Iraqi Penal Code, titled "Rape, buggery, indecent assault" is all about consensual sex and legal age of sexual interactions (which is 18 and above). Let's take a look at what it says:
(1) Any person who has sexual intercourse with a female without her consent or commits buggery with any person without their consent is punishable by a term of imprisonment not exceeding 15 years.
The article makes it clear that it is only an offense if the act was not consensual, however, LGBTQI+ people are being arrested and charged with this article regardless of the involvement of consent. Usually, the receiver is declared the victim and the giver the offender; ironically, though, both of the parties involved in the act end up going to jail, even the "victim."
Law students are taught to refer to this article as "قانون اللواطة", Arabic for "The law of homosexuality", even though it has nothing to do with homosexuality. Just like that, we are stuck in an endless loop of ignorance and hate towards the community. However, they did not stop here. There is more.
This article, clearly inspired by Islamic teachings, declares that a person can be jailed if they had sex with a person they are not married to, even if that person gave consent. In case the victim was a minor (which does not make sense to refer to here, as that is pedophilia and should have a separate law) the offender would be imprisoned for 10 years and not more. In case the victim was an adult, the offender would be imprisoned for seven years and not more (again, even with consent).
(1) Any person who, outside of marriage, has sexual intercourse with a woman with her consent, or commits buggery with a person with their consent, is punishable by a period of imprisonment not exceeding 7 years if the victim is between the ages of 15 and 18. If the victim was under the age of 15, the offender is punishable by a period of imprisonment not exceeding 10 years.
You might now say "well, why don't LGBTQI+ people just get married to avoid being charged?" Good point, except same-sex marriage is illegal. Talk about being cornered! In Iraq, marriage is considered for heterosexual couples who seek to create a family only.
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Section 3: Immodest and shameful acts
In section three, titled "Immodest and shameful acts", we have articles 400 and 401, which are also used to charge the LGBTQI+ community. According to data provided by a pro-LGBTQI+ organization operating in Iraqi Kurdistan called Rasan, lawyers seem to agree that these articles are specifically for charging people who participate in homosexual acts. People who are thought to have violated the norms can be charged for "violating public morality."
Any person who commits an immodest act with a man or woman and without his or her consent is punishable by a period of detention not exceeding 1 year plus a fine not exceeding 100 dinars or by one of those penalties.
Again, the word consent is ignored and both the parties who engaged in sexual intercourse are charged and imprisoned. The article also stigmatizes sexual relationships between people by labeling it as "shameful" and "immodest."
With a very vague context that can be applied to hundreds of situations or acts, this article reads:
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.
This law is referred to as "public indecency." Acts such as simply holding hands, hugging, or kissing, can be charged with this article. This article is also applied to heterosexual couples, but most people charged are members of the LGBTQI+ community.
Iraq's LGBTQI+ Community
There is no doubt that the LGBTQI+ community of Iraq is strong and resilient. Unfortunately, though, there will come a point when they have to give in and give up. This is only natural when you don't feel fit in and always feel isolated. Many members of the Iraqi LGBTQI+ community choose to stay hidden out of sight, and most of them migrate to European countries to practice the freedom they were restrained from in their own community.
The public chooses to ignore the issues the LGBTQI+ community faces, they simply look the other way and claim that there are more important issues facing the world, but this is not true. Homophobia is one of the biggest issues in today's Iraqi community. There are many talented and intelligent people from the community that don't dare to raise their voice in fear of persecution because of their sexual orientation, and they have the right to fear for their safety.
Amir Ashour, founder of IraQueer, said:
“LGBT+ individuals in Iraq are facing life-threatening danger, the annual killing campaigns that have been happening for more than a decade are still unaddressed by the government, and not even one person has been held accountable for killing a gay person."
There have been many cases in the country where LGBTQI+ people faced defamation, sexual assault, torture, and death. Most of these cases are from their own families. Many families choose to kill their LGBTQI+ members as part of the honor killing practice, because they think having a homosexual member in the family brings shame and dishonor to the family's name.
In 2017, more than 220 Iraqi LGBTQI+ individuals were killed, according to an article by Shafaaq. According to the source, a study by IraQueer, an Iraqi LGBTQI+ organization, determined that there have been annual killing campaigns arranged against the Iraqi LGBTQI+ community since 2003. Some of these killings were carried out by terrorist groups such as ISIS and Asa’eb Ahl Al-Haq.
The terrorist group carried out the killings using various inhumane methods, such as throwing suspected people off high buildings, drowning, shooting, and using bricks to smash their skulls.
Change must be made starting from the law. Not criminalizing homosexuality is not enough, we can see that from the current state of the LGBTQ+ community. This community needs to be protected by law, and those who commit violence against them must be held accountable and punished.
There has been a recent spark in interest regarding the topic after organizations like Rasan, IraQueer and Lava apeard. Local news outlets in the Iraqi Kurdistan such as Rudaw and NRT have news coverage regarding the issues of the community, and now, we need to advance further into politics and law to solve the danger the community faces.
- According to Rasan Organization, which is an organization working in LGBTQI+ issues and cases in Iraqi Kurdistan, lawyers and judges seem to agree that there is a law against homosexuality and they insist that they should be prosecuted.
- Iraqi Penal Code sourced from Refworld, official translated document of the Iraqi Penal Code.
- Statistics about violence against LGBTQI+ people in Iraq sourced from IraQueer, an Iraqi LGBTQI+ organization registered in Europe and operating in Iraq and the Kurdistan Region.