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.
[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.
[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”).
[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.