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,[i] combatting discrimination against women in law and in practice,[ii] and guaranteeing respect for international humanitarian law and human rights.[iii]  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.
  4. A fundamental principle of international human rights law is the protection against discrimination. The Universal Declaration on Human Rights (UDHR) and the Charter of the United Nations – as well as CEDAW,[iv] CAT, and the ICCPR – have all codified the principles of non-discrimination and equality.[v] As the UDHR states, “All are equal before the law and are entitled without any discrimination to equal protection of the law.”[vi]These principles of equality and non-discrimination are part of the foundations of the rule of law of human rights. Under these principles, states are required to ensure that women, on the basis of equality of men and women, fully enjoy the benefits of the rule of law.
  5. Iraq’s criminal laws as rendered fail to provide protections for women and girls in violation of this requirement. Specific examples where legal reform is needed include amending provisions regarding rape, forced marriage, torture, as well as domesticating the international crimes of genocide, crimes against humanity, and war crimes in line with international standards. The definitions of these crimes leave out various forms of violence against women that are protected under CAT, ICCPR, CEDAW, and the Geneva Conventions. Until these criminal laws are reformed, Iraq will continue to be in violation of its human rights obligations.
  6. Not only are women and girls entitled to non-discriminatory application of the rights contained within these treaties, but so too are they entitled to non-discriminatory reparations in the event that those rights are infringed.[vii] If Iraq’s criminal laws are left unchanged, Daesh’s female victims will be unable to achieve meaningful justice or seek proper redress for the unique harms they faced on the basis of their gender and sex.
  7. Under international law, survivors of sexual and gender-based violence are entitled to reparations including guarantees of non-repetition.[viii] One measure of guaranteeing non-repetition is “[r]eviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.”[ix] As the CEDAW Committee has recommended, State parties should “mandate institutional reforms, repeal discriminatory legislation and enact legislation providing for adequate sanctions in accordance with international human rights standards.”[x] Such legal reform is required to ensure “women and girls are able to move forward and reconstruct their lives without facing discrimination.”[xi]
  8. Complete gender justice will take a fully transformative agenda with actors at the local, regional, and international level finally recognizing, redressing, and remedying the gender-based discrimination that underlies the treatment of women and girls. Such effort includes reforming Iraq’s criminal laws to bring them in line with international standards, in order to safeguard better protections for victims from violence and ensure access to justice.

II. Iraq’s Discriminatory Criminal System

A. Domestic Crimes

        10.  Iraq’s definition of rape, forced marriage, and torture are a few examples of how the country’s criminal laws collectively fail to fully define, deter, prevent, punish, or redress sexual and gender-based violence crimes. Clearly defining these crimes in line with international standards is an important step in implementing the Iraqi Government’s obligations to eliminate discrimination against women.

Rape

  1. Iraq’s rape laws are not in line with international standards and do not encompass the number of ways that rape was perpetrated and used by Daesh against the Yazidis. Specifically, Iraq’s Penal Code Article 393 defines rape as “sexual intercourse with a female without her consent or…buggery with any person without their consent.” Article 393 is not gender-neutral and is limited only to acts of “sexual intercourse” (vaginal intercourse)—leaving out Daesh’s serious violent and invasive sexual crimes that were beyond “sexual intercourse or buggery” (e.g. by including penetration by objects and other body parts). “Consent” is central to Iraq’s definition of rape (rape only occurs where there is lack of consent).[xii] However, the term “consent” is not defined, clarified, or otherwise described anywhere in the Penal Code’s rape provision. Prosecutions focusing on “consent” inherently focus on semantics about the victims’ words or actions and do not properly consider victims whose enslavement, age, or subjection to threats or coercive environments prevented genuine consent.[xiii]
  2. A broader, more comprehensive criminal definition of rape is necessary, especially during conflict or mass atrocities, to account for rape’s multifarious methods, purposes, contexts, individual motives, and intra-group dynamics. For example, beyond “sexual intercourse,” Daesh used rape as a tool for recruitment and to erode community cohesion.[xiv] Criminal accountability should not be limited to an antiquated focus on sexual intercourse and consent; rather, it should reflect the diverse and varied ways and reasons Daesh committed rape.

Reporting Rape

  1. Article 3 of Iraq’s Criminal Procedure Code establishes that prosecution for rape only begins if the victim affirmatively acts.[xv] Complaints relating to rape will not be accepted more than three months after the victim “became aware of the offence or from the disappearance of any compelling excuse” which prevented the complainant’s submission of the complaint.[xvi]  If the victim withdraws their complaint, they “lose their right to criminal justice.”[xvii] Penal Code Article 385 criminalizes “any person who has carnal knowledge of a girl to whom he is not married with her consent when she has not yet reached the age of 18.”[xviii] A prosecution of this crime, however, “may only be brought on the basis of a complaint by the victim or her ancestor, descendant, brother or sister.”
  2. International standards do not require victim initiation or participation for prosecution of rape or sexual violence.[xix] Such provisions can cause survivors of sexual violence to relive or confront their trauma in forced and highly destructive ways. They presuppose what women’s responses to such violence should be and negatively affect women’s rights to equality before the law, fair trial, and effective remedy.[xx] Further, victims of rape and sexual violence may be unwilling to initiate such proceedings.[xxi] In conservative societies like Iraq, women face societal barriers in reporting sexual violence crimes, including fear of retribution from, or against, family members.[xxii] Women and girls in Daesh-controlled territory were brought to houses, sometimes by the hundreds, and group-by-group taken for rape.[xxiii] The sheer volume of rape occurring at the hands of Daesh, coupled with the fact that many victims do not know and have no way of identifying their rapists, means that victim-initiated complaints are next to impossible in practice. For these reasons, such discriminatory requirements should not be any part of accountability for rape generally and must not be a feature when holding Daesh accountable.

Forced Marriage

  1. Article 9 of Iraq’s Personal Status Law criminalizes forced marriage: “no relative or non-relative has the right to force marriage on any person, whether male or female, without their consent.”[xxiv] Where there has been a forced marriage, either a specialized “personal status” court or the victim must refer the case to criminal justice authorities.[xxv] Article 9 further establishes that “[t]he contract of a forced marriage is considered void if the marriage is not yet consummated.” However, the law does not automatically void forced marriages that have been consummated.[xxvi] Additionally, Iraq has a reservation to CEDAW Article 16, which calls on States to take measures to eliminate discrimination against women with respect to marriage.
  2. Forced marriage is not specifically described within international criminal law, but has been prosecuted as the crime against humanity of an “inhumane act,” which requires “great suffering, or serious injury to body or to mental or physical health.”[xxvii] International human rights law, including the ICCPR to which Iraq is a party, also protects the right to marry freely, and that women’s “right to choose when, if, and whom she will marry must be protected and enforced by law.”[xxviii] Iraq’s Personal Status Law Article 9 does not define the types of actions that constitute marriage by “force” (e.g. by threats of violence) or the types of “consent” that are considered invalid (e.g. under duress). As such, the law is vague and does not fully account for the ways by which women and girls were systemically and en masse forced or otherwise coerced into marriages with Daesh fighters.[xxix] This gap is a particular risk as Iraq continues to prosecute people for “membership or support” of a terrorist organization, potentially including women and girls whose only “membership or support” of Daesh was having been forcibly married to a Daesh fighter.[xxx] Although forced marriage is prohibited, the Iraqi Government makes few efforts to enforce the law, and traditional forced marriages of girls continue, especially in rural and Daesh-controlled areas.[xxxi]

Torture

  1. Article 37 of the 2005 Constitution prohibits “all forms of psychological and physical torture and inhumane treatment,” barring confessions obtained under torture and ensuring victims’ right to seek compensation for “material and moral damages incurred.”[xxxii] Both the Iraq Criminal Procedure Code and the Penal Code prohibit the use of torture “and other illegal methods” to obtain confessions or admissions, when used by public officials.[xxxiii] Iraq’s Penal Code outlaws cruel treatment, defining it as treatment by a public official that causes a loss of dignity or physical pain.[xxxiv]
  2. The CAT, to which Iraq is a party, defines torture in such a way to cover specific and sufficiently broad conduct to capture the various means and ways torture is actually carried out. It acknowledges that torture can be physical or mental, that it can be performed because of discrimination, and that it can be done because of the mere acquiescence of a public official. This breadth allows for the gendered harms perpetrated by Daesh, including rape, sexual assault, trafficking, slavery, forced and child marriage, to be fully captured[xxxv]—and is therefore essential to ensuring full gender justice for Daesh crimes. Under CAT, Iraq is obliged to “ensure that the principle of the absolute prohibition of torture is incorporated into its legislation and ensure its strict application.”[xxxvi] None of Iraq’s laws on torture define the types of conduct that constitute torture—they merely contain declarations that “torture” is prohibited. Accordingly, there is no clarity on what constitutes “torture” under Iraqi law. Without more specificity, conduct amounting to torture carried out against women and girls is often ignored.  

Recommendations

  • The Government should adopt a legal definition of rape in line with international standards.
  • The Government should remove the requirements of victim initiation or participation for prosecution of rape or sexual violence.
  • The Government should criminalize and punish forced marriage.
  • The Government should adopt a definition of torture in line with CAT.
  • The Government should remove its reservations to CEDAW, specifically to Article 2(f) and (g) and Article 16, and take steps to fully implement CEDAW.
  1. International Crimes

        19. The broad and systematic nature of Daesh’s violence elevated their crimes beyond the traditional domestic framework and into international concern. Daesh committed all of the core international atrocity crimes of genocide, crimes against humanity, and war crimes; yet none of these have been formally outlawed by Iraq. Failing to investigate and prosecute international atrocity crimes as distinct crimes with specific gendered harms misses an opportunity to build a complete historical record, honor the experiences of victims, and ensure full accountability for Daesh’s criminality.

Genocide

  1. Iraq has no domestic law prohibiting or punishing genocide,[xxxvii] nor does it have criminal prohibitions on persecution or any other law that encapsulates attempts or acts aimed at destroying the Yazidis or eradicating those based on group identity. Iraq is a party to the Convention on the Prevention and Punishment of the Crime of Genocide,[xxxviii] but has not complied with its treaty obligations to make genocide a crime in the Iraqi Penal Code. Genocide is also a crime under treaty and customary international law, which imposes obligations on governments and international entities to prevent, suppress, and punish its commission.[xxxix] This means the government of Iraq, other states, and international entities are required to take all measures reasonably within their means to punish the sexual and gender-based crimes committed in furtherance of Daesh’s genocide, and the failure to do so violates their international obligations.[xl]
  2. The absence of a law criminalizing genocide means that the specific nature of Daesh’s intent to destroy the Yazidis will not, and indeed cannot, be punished. There will be no accountability for the fact that Daesh intentionally targeted Yazidis for destruction with acts including killing, rape, forcible transfer, and enslavement.[xli]

Crimes against Humanity

  1. Iraq does not have domestic legislation penalizing crimes against humanity.[xlii] Thus, Iraq’s Penal Code does not properly account for the organized, widespread, or systemic attacks that characterize Daesh’s crimes. The specific prohibition of “crimes against humanity” is intended to name and criminalize conduct that is viewed as an attack on the very quality of being human.[xliii] Indeed, “the crime is so heinous that it is an attack not just upon the immediate victims, but also against all humanity, and hence the entire community of humankind has an interest in its punishment.”[xliv] Central to this crime is the widespread and systematic nature of the perpetrator’s conduct. Daesh crimes fall squarely within this definition. The efficiency and uniform manner in which Daesh committed its sexual and gender-based violence are central to its criminality, and therefore must be accounted for in Iraq’s efforts at justice.
  2. Without a dedicated law, Iraq is incapable of punishing, stigmatizing, or memorializing the egregious systemization and scale of crimes Daesh committed, not only against individuals but the community as a whole. By not codifying crimes against humanity domestically, justice for women and ethnic minorities is precluded and amounts to discrimination.

War Crimes

  1. Iraq does not have domestic legislation penalizing war crimes. Iraq is a party to the four Geneva Conventions of 1949 and Additional Protocol I of 1977,[xlv] and accordingly has international obligations to criminalize and hold accountable war criminals. In fact, under the Geneva Conventions of 1949, Iraq has legal obligations to pass legislation prohibiting and punishing war crimes.[xlvi] These obligations remain unfulfilled as long as the Iraqi Penal Code does not specifically incorporate and penalize war crimes.
  2. Iraq must not fail to prosecute Daesh’s sexual and gender-based crimes for what they were: war crimes. Without special protections, the fact that Daesh engaged in and carried out their atrocities under the unique legal circumstances brought on by war will not be specially punished. Indeed, dedicated laws are required to protect civilians from death, rape, torture, or any other intentional harms that accompany armed conflict.

Recommendations

  • The Government should adopt a law criminalizing genocide in line with the Convention on the Prevention and Punishment of the Crime of Genocide.
  • The Government should adopt domestic legislation penalizing crimes against humanity.
  • The Government should pass legislation prohibiting and punishing war crimes in line with its legal obligations under the Geneva Conventions of 1949.

Download the Submission


[i] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 15, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.36 Take any proper measure in order to keep national legislation fully in line with international standards and obligations (Italy)”).

[ii] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 18, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.85 Effectively combat discrimination against women in law and in practice (Togo)”).

[iii] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 19, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.100 Guarantee respect for international humanitarian law and human rights … (Spain)”).

[iv] Iraq has a reservation to CEDAW’s Article 2(f) and (g), which read, “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: … (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.” (Convention on the Elimination of All Forms of Discrimination Against Women Preamble, art. 2, Dec. 18, 1979, 1249 U.N.T.S. 13). The CEDAW Committee has held Article 2 to be “central to the objects and purpose of the Convention.” (Report of the Committee on the Elimination of Discrimination against Women (Eighteenth and nineteenth sessions), p. 49, A/53/38/Rev.1 (1998)). Iraq’s reservation to Article 2 is therefore at odds with CEDAW’s object and purpose, rendering it invalid. (See Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 13 (“The object and purpose of the Convention thus limit both the freedom of making reservations and that of objecting to them.”)).

[v] Universal Declaration of Human Rights art. 7, Dec. 10, 1948, U.N. Doc. A/RES/217(III); U.N. Charter Preamble, art. 1, para. 2; Convention on the Elimination of All Forms of Discrimination Against Women Preamble, art. 2, Dec. 18, 1979, 1249 U.N.T.S. 13; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85; International Covenant on Civil and Political Rights art. 26, Dec. 19, 1966, 999 U.N.T.S. 171.

[vi] Universal Declaration of Human Rights art. 7, Dec. 10, 1948, U.N. Doc. A/RES/217(III).

[vii] UN Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence, p. 4 (June 2014).

[viii] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ¶¶ 18, 23, Mar. 21, 2006, U.N. Doc. A/RES/60/147.

[ix] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ¶ 23(h), Mar. 21, 2006, U.N. Doc. A/RES/60/147.

[x] CEDAW Comm., General Recommendation No. 33, ¶ 19(e).

[xi] UN Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence, p. 20 (June 2014).

[xii] Penal Code art. 393(1). “Consent” is not otherwise defined or qualified in the Iraq Penal Code or Criminal Procedure Code. The Penal Code’s description of sexual assault as “without his or her consent and with the use of force, menaces, deception or other means” may suggest that consent and force/coercion are distinct concepts in Iraq law. Penal Code art. 396(1); see also Penal Code art. 393 (describing perpetrators’ authority over the victim, the victim’s age, and multiple perpetrators as aggravating circumstances rather than circumstances affecting potential consent.)

[xiii] See, e.g., Prosecutor v. Bemba, Case No. ICC-01/05-01/08-3343, Trial Judgment, ¶¶ 105-06 (Mar. 21, 2016) (“the victim’s lack of consent is not a legal element of the crime of rape under the Statute. . . . on the basis that such a requirement would, in most cases, undermine efforts to bring perpetrators to justice.”); Prosecutor v. Kunarac et al., Appeals Judgment, Case No. IT-96-23 & IT-96-23/1-A, ¶ 128 (June 12, 2002) (rejecting the assertion that continuous resistance was necessary to provide adequate notice to perpetrators); Int’l Criminal Court, Rules of Procedure and Evidence r. 70(c); U.N. Women, Handbook for Legislation on Violence Against Women 25 (2012) (noting that “definitions of sexual assault based on a lack of consent may, in practice, result in the secondary victimization of the complainant/survivor by forcing the prosecution to prove beyond reasonable doubt that the complainant/survivor did not consent” and emphasizing that definitions of sexual violence based on coercion should include expansive circumstances). Another example left out by the focus on consent is rape committed under coercion or threats directed not against the victim, but a third person. Int’l Criminal Court, Elements of Crimes art. 7(1)(g)-1, element 2.

[xiv] See U.N. Secretary-General, Rep. on Conflict-Related Sexual Violence, ¶¶ 28-29, U.N. Doc. S/2015/203.

[xv] Criminal Procedure Code art. 3(A)(iii) (in cases of rape where the victim is a spouse or descendent of the perpetrator); Penal Code art. 385 (complaint must be brought by victim or ancestor). The Criminal Procedure Code also specifies that the right to submit a complaint does not transfer to heirs. Criminal Procedure Code art. 9(D). See also, U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL/ or in Areas Controlled by ISIL in Iraq ¶ 23 (Aug. 22, 2017), http://www.uniraq.com/index.php?option=com_k2&view=item&task=download&id=2237_d4579691236af63a6d57621c51d8aa35&Itemid=650&lang=en [UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL].

[xvi] Criminal Procedure Code art. 6.

[xvii] Criminal Procedure Code art. 9(F). Article 8 also specifies that complaints will be dismissed if not “followed up on” by complainants within three months in cases where submitting a complaint is required. Criminal Procedure Code art. 8.

[xviii] Penal Code art. 385.                                                                                                      

[xix] U.N. Women, Handbook for Legislation on Violence Against Women 34-35 (2012).

[xx] CEDAW Comm., General Recommendation No. 35, ¶ 26(c).

[xxi] UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL, ¶ 23.

[xxii] Penal Code arts. 128, 409, 417(4) (committing specified crimes out of shame or with “honourable motives” is a mitigating excuse); U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Report on Human Rights in Iraq: July to December 2016, at 28-29; Huda Ahmed, Freedom House, Iraq, in Women’s Rights in the Middle East and North Africa 1, 7-8 (2010); U.S. Dep’t of State, Iraq 2016 Human Rights Report 49-52 (2017) (victims of sexual or domestic violence “did not usually report it to authorities or pursue legal remedies” because of social stigma and risk of familial retribution or because they feared family protection units “would immediately inform their families of their testimonies”); Miriam Puttick, Ceasefire Ctr. for Civilian Rights & Minority Rights Group Int’l, The Lost Women of Iraq: Family-Based Violence During Conflict 18, 28-29 (2015), http://minorityrights.org/wp-content/uploads/2015/08/Lost-Women-English.pdf; U.K. Home Office, Country Policy and Information Note, Iraq: Kurdish ‘Honour’ Crimes (2017), https://www.justice.gov/eoir/page/file/995246/download (honor crimes continue in Kurdistan despite its repeal of honor as a mitigating circumstance).

[xxiii] Seivan M. Salim, The Yazidi Women Who Escaped ISIS, The Daily Beast (2015), http://www.thedailybeast.com/longforms/2015/isis/portraits-of-the-yazidi-women-who-escaped-isis.html; Amnesty Int’l, Escape from Hell: Torture and Sexual Slavery in Islamic State Captivity in Iraq 5 (2014), https://www.amnesty.org.uk/files/escape_from_hell_-_torture_and_sexual_slavery_in_islamic_state_captivity_in_iraq_-_english_2.pdf;

[xxiv] Personal Status Law No. 188 of 1959 art. 9(1) (Iraq).

[xxv] Personal Status Law No. 188 of 1959 art. 9(3).

[xxvi] Personal Status Law No. 188 of 1959 art. 9(1). The Kurdistan Personal Status Law was amended to consider forced marriages void and suspended even if consummated, and forced marriage is included as a crime in Kurdistan’s 2011 anti-domestic violence law. Act No. 15 of 2008, Act to Amend the Amended Law No. 188 of 1959, Personal Status Law, in Iraq Kurdistan Region art. 6(1); Act No. 8 of 2011, Act Combating Domestic Violence in Kurdistan Region-Iraq art. 2(First)(1).

[xxvii] Rome Statute art. 7(1)(k); ICC Elements of Crimes art. 7(1)(k), elements 1-2. Forced marriage has been recognized as an “other inhumane act” in the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. See Co-Prosecutors v. Ieng Sary et al., Case No. 002/19-09-2007-ECCC-OCIJ, Closing Order, ¶¶ 1442-47 (Sept. 15, 2010); Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Confirmation of Charges, ¶¶ 87-95 (Mar. 23, 2016); Prosecutor v. Brima, Case No. SCSL-2004-16-A, Appeals Judgment, ¶ 186, 195-96 (Feb. 22, 2008).

[xxviii] Universal Declaration of Human Rights art. 16(2), Dec. 10, 1948, U.N. Doc. A/RES/217(III); International Covenant on Civil and Political Rights art. 23(3), Dec. 19, 1966, 999 U.N.T.S. 171; Convention on the Elimination of All Forms of Discrimination Against Women art. 16(1)(a)-(b) (noting Iraq’s reservation to Article 2(f)(g) and Article 16 of the Convention, Status on the Convention on the Elimination of All Forms of Discrimination Against Women, U.N. Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en#EndDec); Convention on the Elimination of All Forms of Discrimination Against Women Comm., General Recommendation No. 21 on Equality in Marriage and Family Relations, ¶¶ 15-16, U.N. Doc. A/49/38 (1994).

[xxix] Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 59, 73, U.N. Doc. A/HRC/30/48 (Aug. 13, 2015); Salim, The Yazidi Women Who Escaped ISIS; Amnesty Int’l, Escape from Hell, at 5-7, 11-12; Iraq: Sunni Women Tell of ISIS Detention, Torture, Describe Forced Marriage, Rape, Human Rights Watch; U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Report on the Protection of Civilians in the Armed Conflict in Iraq: 11 December 2014–30 April 2015, at 22 http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_4th_POCReport-11Dec2014-30April2015.pdf (reporting the abduction and killing of Sunni and Turkmen Shi’a women who refused to marry ISIS fighters).

[xxx] See, e.g., Iraq Kurdish Authorities Must End Disgraceful Detention of Yezidi Woman Who Survived IS Captivity, Amnesty Int’l (Sept. 9, 2016), https://www.amnesty.org/en/latest/news/2016/09/iraq-kurdish-authorities-must-end-disgraceful-detention-of-yezidi-woman-who-survived-is-captivity/; Letta Taylor, The Women Who Escaped ISIS: From Abused to Accused, Human Rights Watch (Mar. 11, 2017), https://www.hrw.org/news/2017/03/11/women-who-escaped-isis; UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL, ¶ 41 (noting the risk that women married to ISIL members with or without consent may be subject to discrimination and collective punishment); Human Rights Watch, “No One is Safe:” Abuse of Women in Iraq’s Criminal Justice System 19-37 (2014) (describing the arrest and detention of women under the 2005 Anti-Terrorism Law based on familial association); Human Rights Watch, Flawed Justice: Accountability for ISIS Crimes in Iraq 27-33 (2017) (on current prosecutions).

[xxxi] U.S. Dep’t of State, Iraq 2016 Human Rights Report, at 56. “According to UNICEF, approximately 975,000 girls in Iraq were married before the age of 15, twice as many as in 1990.” Id. See also Huda Ahmed, Freedom House, Iraq, at 12.

[xxxii] Constitution art. 37(first)(C).

[xxxiii] Criminal Procedure Code arts. 127, 218; Penal Code art. 333. See also Constitution art. 9(D) (intelligence service shall operate according to law and “recognized principles of human rights”).

[xxxiv] Penal Code art. 332.

[xxxv] See Human Rights Council, Rep. of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶¶ 51-67, U.N. Doc. A/HRC/31/57 (Jan. 5, 2016) (by Juan E. Méndez).  

[xxxvi] Committee against Torture, Concluding Observations on initial report of Iraq, ¶ 10, U.N. Doc. CAT/C/IRQ/CO/1 (Sept. 7, 2015).

[xxxvii] There is no criminal law outlawing or otherwise describing genocide in Iraq’s Penal Code. The “Iraqi High Tribunal”—created to punish crimes committed by Saddam Hussein’s government—contains an article criminalizing genocide, crimes against humanity and war crimes, but the law that created this tribunal does not apply generally to Iraq’s Penal Code, or to Daesh’s crimes. Law No. 10 of 2005, Law of the Iraqi Higher Criminal Court art. 1(Second) (Iraq).

[xxxviii] Notification of Accession by Iraq to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, Doc. C.N.16.1959.Treaties-1 (Feb. 24, 1959), https://treaties.un.org/doc/Publication/CN/1959/CN.16.1959-Eng.pdf.

[xxxix] Genocide Convention arts. 1-8; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugoslavia), Preliminary Objections Judgment, 1996 I.C.J. 595, ¶ 31 (July 11) (“the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes”).

[xl] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43, ¶¶ 430-31 (Feb. 26); Global Justice Ctr., Letter in Support of Filing of OTP-CR-397/15 to the Office of the Prosecutor of the International Criminal Court (Dec. 17, 2015).

[xli] Amnesty Int’l, Escape from Hell; Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 63, 188, U.N. Doc. A/HRC/28/69 (Feb. 5, 2015); Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 113-17, U.N. Doc. A/HRC/30/48; Human Rights Council, Rep. of the Office of the United Nations Commissioner for Human Rights on the Human Rights Situation in Iraq in Light of the Abuses Committed by the So-called Islamic State in Iraq and the Levant and Associated Groups, ¶¶ 76, 78; Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic: Rule of Terror: Living under ISIS in Syria, ¶ 53-55, U.N. Doc. A/HRC/27/CRP.3 (Nov. 19, 2014); Iraq: ISIS Escapees Describe Systematic Rape, Human Rights Watch, (Apr. 14, 2015), https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape.

[xlii] Several provisions of the Penal Code contain “aggravating factors” that incorporate scale and patterns of abuses, such as committing crimes that involve multiple perpetrators, brutal methods, or are committed multiple times, but none capture the international nature of crimes against humanity. See, e.g., Penal Code arts. 135, 393(2)(d), 406(1), 421-24. The Penal Code provides that material circumstances that would increase the penalty of the offence affect the liability of all parties, whether or not they are aware of those circumstances. To incur criminal liability, the Rome Statute requires that perpetrators must know that their “conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population” and in the case of sexual violence be “aware of the factual circumstances that established the gravity of the conduct.” Compare Penal Code art. 51 (“If there exists material circumstances in the offence that would by their nature increase or decrease the penalty, then they will affect all parties to the offence, principal or accessory, whether they are aware of those circumstances or not.”), with ICC Elements of Crimes, art. 7(1)(g)-6, elements 3, 5, and art. 7(1)(g)-1, element 4.

[xliii] Int’l Law Comm’n, First Rep. of the Special Rapporteur on Crimes Against Humanity, ¶ 27, U.N. Doc. A/CN.4/680 (Feb. 17, 2015) (by Sean D. Murphy).

[xliv] Int’l Law Comm’n, First Rep. of the Special Rapporteur on Crimes Against Humanity, ¶ 27.

[xlv] Treaties, States Parties and Commentaries: Iraq, Int’l Comm. Red Cross, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=IQ.

[xlvi] Geneva Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field art. 49-51, Aug. 12, 1949, 75 U.N.T.S. 31; see also Geneva Convention (II) for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 50-52, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War arts. 129-131, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War arts. 146-148, Aug. 12, 1949, 75 U.N.T.S. 287.

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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