Discrimination by Design: Key Points for the Universal Periodic Review of Iraq

In advance of the Human Rights Council’s forthcoming review of Iraq, it is critical that attention is paid to the need for fundamental reform of Iraq’s legal system in order to achieve justice for Daesh’s victims, and more broadly for the people of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.

The Global Justice Center’s full submission highlights a number of concerns over Iraq’s criminal laws as violations of Iraq’s obligations under the treaty bodies to which it is a party – including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions.

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Iraq: Submission to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW)

I. Introduction

1. In advance of the Committee on the Elimination of Discrimination against Women’s (Committee) forthcoming review of Iraq, it is critical that the Committee pay particular attention to the need for fundamental reform of Iraq’s criminal legal system in order to achieve justice for Daesh’s victims, and more broadly for the women and girls of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.

Download the Full Submission

Beijing+25: Push Back Against the Pushback on Women’s Rights

By Maryna Tkachenko

Next year, the international community will mark the 25th anniversary of the Fourth World Conference on Women. Back in 1995, the adoption of the Beijing Declaration and Platform of Action was celebrated as a promising commitment to gender equality, development, and peace. As Hillary Clinton declared that “human rights are women's rights and women's rights are human rights, once and for all,” the world witnessed a turning point for the global agenda on the advancement of women. A quarter of a century later, the fight to empower all women and girls and achieve gender parity is far from over. In the midst of growing backlash against women’s equality, shaping the Beijing+25 agenda must be a priority.

Leading up to the Beijing+25 conferences in 2020—which will be hosted in Mexico City and Paris—we must focus on the key issues surrounding women’s rights. Access to sexual and reproductive health rights around the world must be at forefront of the conversation,  in addition to fighting the persistence of gender discrimination, sexual violence, and oppression. Next year’s agenda cannot ignore the Global Gag Rule, abortion services for women and girls raped in war, and women’s right to be free from gender-based violence and degrading treatment. None of this can be done without implementing a feminist approach to humanitarian aid.

Iraq: Submission to the United Nations Universal Periodic Review

Submission to the UN Human Rights Council

Universal Periodic Review – 34th Session

Iraq

I. Introduction

  1. In advance of the Human Rights Council’s forthcoming review of Iraq, it is critical that the Council pay particular attention to the need for fundamental reform of Iraq’s legal system in order to achieve justice for Daesh’s victims, and more broadly for the people of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.
  2. In the last Universal Periodic Review cycle for Iraq, multiple recommendations were made and accepted by the country with respect to ensuring national legislation was fully in line with international standards, combatting discrimination against women in law and in practice, and guaranteeing respect for international humanitarian law and human rights. Iraq has failed to take meaningful action on these recommendations.
  3. This submission highlights a number of concerns over Iraq’s criminal laws as violations of Iraq’s obligations under the treaty bodies to which it is a party – including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions.

Download the Full Submission

Iraq’s Criminal Laws Preclude Justice For Women And Girls

In light of the gender dynamics at the root of Daesh’s violence, gender must also be at the center of accountability. With justice for Daesh beginning, this Briefing details how Iraq’s current legal framework precludes meaningful justice for women and girls. It highlights the gender gaps in Iraq’s criminal laws and identifies opportunities for broader reform to better protect Iraqi women and girls from sexual and gender-based violence.

Introduction

For years the world watched in collective horror as Daesh committed brutal atrocities. Central to this violence was sexual and gender-based violence, with explicit targeting of women and girls. Daesh used rape, sexual slavery, forced marriage and torture—distinct crimes on their own as well as constituent elements of genocide, crimes against humanity and war crimes—as tools for recruitment, conversion, forced indoctrination, and the fundamental destruction of community cohesion.1 For many, the only thing that stood in opposition to these crimes was the prospect, however far away, of justice.

Justice, however, is complex. It requires accountability, redress and a focus on preventing the recurrence of violations. Justice efforts must be independent, credible, inclusive, and accepted by impacted communities, with special respect and recognition for the dignity of victims. Importantly, and as this Briefing illustrates, it must reflect the full scope and scale of the crimes that occurred.
As the international community and the Iraqi government begin the process of holding members of Daesh accountable for their crimes, it is critical to examine the legal systems that will be responsible for these prosecutions. Prosecutions to date, which have all been conducted under Iraq’s 2005 counter-terrorism law, have failed human rights standards and do not suffice the interest of justice. 

This Briefing highlights one such example—specifically how Iraq’s current laws fall far short of the requirements for justice, as they are unable to punish the most egregious of Daesh’s gender crimes. Iraq’s Penal Code is a patriarchal patchwork rooted in preexisting peacetime gender inequalities and violence.2 The way and manner in which the Code defines sexual and gender-based violence crimes is steeped in language and perspectives that are inherently and overtly discriminatory against women and fall short of international standards. Any justice mechanism organized under these laws will fail to provide full accountability and redress to Daesh’s female victims. 

In order to highlight these challenges, this Briefing: (i) identifies particular categories of Daesh’s gender crimes and considers how these crimes are currently codified in Iraqi law; (ii) details the gaps where Iraq’s laws do not entirely capture the ways in which Daesh committed sexual and gender-based violence; and (iii) describes international standards for defining and understanding the many facets of these crimes.

A complete reckoning with the planned and inherently gendered elements of Daesh’s violence is essential for Iraq to begin the transition out of armed conflict. These first steps of putting this history behind it must provide justice for victims, combat these victims’ marginalization, and prevent future violations against women, girls and other communities targeted on behalf of their gender. 

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Q&A: Torture and International Law

What is the history of international laws against torture?

Akila: The prohibition on torture, at least in modern international law, began with the Universal Declaration on Human Rights that was passed in the 1960s and contained a general prohibition on torture and cruel and inhumane treatment. This prohibition was replicated in the 1970s in the International Covenant on Civil and Political Rights. Prohibitions on torture were also contained in the 1949 Geneva Conventions.

Around this time, in the 70s, Amnesty International began a campaign to get a declaration through the UN or another binding treaty body prohibiting torture.  Due to this campaign, in 1975 the UN passed a non-binding declaration on torture.  In the ten years after it passed, Amnesty did important documentation and individual reporting that found the declaration wasn't serving its purpose. This began the push and process of advocating for a stand-alone convention against torture. The Convention Against Torture was formally drafted in the early 1980s and was ratified by a number of states somewhere between the late 1980s and early 1990s.

Grant: It was opened up for ratification in 1988, and I believe it came to force in 1994, so it took six years for a critical mass of states to accept it and for it to become enforceable, which is pretty typical of any international treaty.  In writing, the Convention the drafters very much had a traditional view of torture in mind. They were thinking of what we might think of as a "James Bond-esque" type of interrogation where there is one person under the control or custody of another person who wants information from that person either to use that information against them in a court of law or for whatever government purposes. So, when you read the Convention, you see a lot of that type of language regarding formal interrogation by a state.

A: Yes, they were considering issues around the French engaging in torture against the Algerians in the 1950s, the British using torture against the Irish in their civil war, those were the recent experiences in people's minds, ideas of the state trying to elicit information. This is also what we see in the US today; when people think of the torture they think of Bush administration, of water boarding, etc.

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OMCT & GJC Report to CAT: Sri Lankan laws condone torture of women and girls

FOR IMMEDIATE RELEASE—November 14, 2016

[NEW YORK and GEVENA (OMCT-GJC)] — Tomorrow, the Committee Against Torture (CAT), during its 59th session, will examine Sri Lanka’s fifth State party report. In October, the Global Justice Center (GJC) and the World Organisation Against Torture (OMCT) jointly submitted an alternative report focused on how Sri Lankan law violates the Convention Against Torture by banning abortion in most circumstances, and by authorizing rape in certain instances and child marriage.

Women, Peace, and Security: Janet Benshoof, President, Global Justice Center

The last two decades have seen a dramatic transformation in the Security Council’s (Council) role in advancing and enforcing international humanitarian law (IHL). The changing nature of armed conflict, the universal acceptance of human rights, the calcification of certain precepts of international law into jus cogens, and advances in international law have all redefined the limits of state sovereignty and influenced the modern understanding of the Council’s mandate under the United Nations Charter (Charter).

Within this new paradigm, the Council has made protecting civilians in armed conflict central to its duty to maintain international peace and security. As part of this effort, the Council has passed a series of resolutions addressing the impact of armed conflict on women and the use of sexual violence in conflict (Women, Peace and Security Series, WPS Series).2 Despite these efforts, the resolutions have failed to achieve one of the Council’s main goals – ending sexual violence perpetrated against women in armed conflicts around the world.

The chapter, Women, Peace and Security, in the forthcoming publication, Security Council in the Age of Human Rights, examines the Council’s actions in the WPS Series against its duties to act under the evolving imperatives of IHL, in particular those rules considered jus cogens. The chapter argues that the Council has a duty to take stronger and more effective measures to address sexual violence against girls and women in armed conflict, in order to successfully deter its use.

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Security Council Resolutions on Women, Peace and Security in Practice: The Failed Case of Burma

In 2000, the United Nations (UN) Security Council passed a historic resolution as its clarion call for ending sexual violence in conflict. This Resolution, SCR 1325, as well as the succeeding Resolutions, that together form the Women, Peace and Security (WPS) Resolutions recognized the gender-specific impact of conflict and historic gender discrimination in criminal accountability for sexual violence in conflict, and underscored the need for women to participate in post conflict reconstruction. The Global Summit to End Sexual Violence (the Summit) has been convened to create a “sense of irreversible movement to end the use of rape and sexual violence in conflict” and, therefore, is a time to assess how the WPS Resolutions have translated into protections for women during conflict.

Using the current conflict situation in Burma as a test of the WPS Resolutions demonstrates how ineffective they have been in providing protection and remedy for women on the ground during conflict. Despite the mandates of the WPS Resolutions, credible evidence continues to indicate that the military uses sexual violence against ethnic women in Burma as a means to assert its authority and to destroy ethnic communities. The military continues to operate with Constitutionally-sanctioned impunity for its actions. Moreover, current peace negotiations, intended to end decades of ethnic conflict, have almost completely failed to include women, especially ethnic women.

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Updating State National Action Plans to Ensure the International Humanitarian Rights of Women and Girls Raped in Armed Conflict

On the occasion of the Global Summit to End Sexual Violence in Conflict, the Global Justice Center encourages States to exercise global leadership on the protection of women and girls raped in armed conflict by updating their National Action Plans (NAPs) to include explicit language accepting their international humanitarian law obligations to provide non-discriminatory medical care, justice, and reparations to war rape victims.

Women and girls raped in war are among the “war wounded,” therefore protected under international humanitarian law (IHL) by the absolute prohibition on adverse distinction, including on the basis of sex. In reality, however, women and girls raped in war are regularly subjected to discrimination in the medical care they receive and in the justice, accountability, and reparations measures available to them. The prohibition against adverse distinction applies to how all IHL rules are implemented, and it is so fundamental that it constitutes customary international law. Adverse distinction is interchangeable with the term “non-discrimination:” in all cases IHL cannot be implemented in ways that are “less favorable” for women than men.

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The Gender Gap and Women's Political Power in Myanmar/Burma

The rights of women under international law, including the right to occupy positions of political power, have advanced more in the last 20 years than ever before. True political participation requires a significant number of women in all areas of governance: ceasefire and peace treaty negotiations, constitution drafting committees, political parties, executive branch appointments, and elected positions.

In Burma, the long history of militarization has reinforced and perpetuated the gender gap in power. Women are not admitted into active military service, effectively excluding them (as well as ethnic minorities) from political participation since top offices are reserved for the military. Therefore, they have also been ineligible for the employment, education, business, joint venture and travel opportunities created by military status.

Pursuant to the 2008 Constitution, the Defense Services (Tatmadaw) remain an integral and permanent part of the machinery that governs Burma and is constitutionally guaranteed complete power and autonomy. The continued military dominance guaranteed by the Constitution is the main obstacle for women in Burma hindering them from ever gaining real political power.

This timeline illustrates the absence of women’s voices from formal governing structures throughout Burmese history. It should provide an impetus for this formerly silent majority, the feminist majority, to make their voices heard and to take their turn at governing the country.

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Written Submission on the General Recommendation on “Access to Justice”

The GJC welcomes the Committee’s Concept Note and looks forward to the general discussion on “Access to Justice” in preparation for a General Recommendation on the subject.

In general, access to justice for women is essential to the advancement of women’s rights, including the prevention of any form of discrimination against women, including gender based violence, and the full implementation of the rights in the UN Convention on the Elimination of all Forms of Discrimination against Women.2 In this context, it is essential that women are able to assert their rights in a judicial system, have access to redress and reparation, including compensation, and have perpetrators of crimes against women held accountable.

This written submission focuses on one particular area of access to justice: the necessity to ensure equal participation in the judiciary by women, in particular through the use of quota systems. Gender parity in the judiciary is essential in order to ensure the advancement of the rule of law, and high quality, non-discriminatory decisions.

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