In Iraq, including in areas controlled by ISIS, women, girls, LGBTIQ people, and those otherwise perceived as stepping outside of traditional gender roles have been targeted for violence on a staggering scale. ISIS fighters have tortured women doctors and nurses who have not complied with rigid dress codes when doing so interfered with the performance of their medical duties. They have executed women who have resisted forced marriage or who have served as politicians. Men believed to be gay have been thrown off buildings. Women believed to be lesbians have been issued death warrants. ISIS has killed youth because of their alternative forms of personal expression or refusal to join their militia, labeling them “faggots.”
War-time abuses against people who are marginalized within their societies are rarely documented. As a result, such violations are excluded from human rights discourse and from future justice processes. In effect, they are left out of history. For this reason, Iraqi activists, at great personal risk, have been documenting these crimes, and not only those committed by ISIS but also by Iraqi government forces, and other militias. They have preserved critical information about perpetrators and larger criminal networks. Many of these same documenters have also provided safe passage and shelter to people at imminent risk of sexual slavery or murder.
For this reason, on November 8th, advocates filed a new petition—the first of its kind—to the International Criminal Court (ICC), to advance protection of the rights of women and LGBTIQ people. Filed jointly by three organizations—MADRE, the Human Rights and Gender Justice (HRGJ) Clinic of the City University of New York (CUNY) School of Law, and the Organization of Women’s Freedom in Iraq (OWFI), and with help from the law firm Debevoise & Plimpton, the petition argues that the international community should prosecute ISIS fighters for crimes committed on the basis of gender, including discrimination based on sexual orientation and gender identity. These crimes are all forms of gender-based persecution.
This is the first time the world has seen this kind of robust documentation of crimes against women and LGBTIQ persons for transgressing gender norms during an armed conflict. The petition therefore offers a new opportunity to challenge this type of violence. Of course, knowledge of egregious crimes committed against women and perceived or actual LGBTIQ persons in armed conflict itself is not new. At the world’s first international criminal prosecutions in Nuremberg, Germany, rape and sexual slavery of women and torture of LGBTIQ persons were acknowledged but never prosecuted.
It was only in the 1990s, with the creation of the International Criminal Court, that gender-based forms of violence were first recognized as violations of international law.
At the time, women’s rights advocates rallied drafters of the Rome Statute that governs the ICC to abandon the “outrages to personal dignity” language to describe sexual violence. They succeeded to broaden the category of sexual violence to include not only rape, but also sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other previously undefined forms of sexual violence.
Advocates also succeeded in substituting the word “gender” for “sex” in the Rome Statute—an advance hailed as one of the most important safeguards for gender justice under international criminal law and a major achievement of global women’s movements in the ‘90s. Yet since then, the full understanding of “gender” under the Rome Statute has not been applied.
ISIS’ atrocities s come at a time when the rights of women and of LGBTIQ people are under threat globally, Last fall, right-wing conservatives curtailed women’s and LGBTIQ rights in Colombia’s peace accord. At the close of 2016, conservative states at the UN General Assembly sought to revoke the mandate of the first independent UN expert on sexual orientation and gender identity. And in countries around the world, rights to individual expression, specifically gender expression are being rolled back.
In response, last year and with the help of MADRE and UN WOMEN, CUNY Law School convened an experts meeting on LGBTIQ rights and international criminal law from around the world. Together they honed the strategy for the petition to the ICC and for ensuring the safety and security of those associated with it, including Iraqi groups named in the petition. Activists also held a series of consultations with Iraqi women’s organizations in-country. For safety reasons, the decision was taken not to translate the submission into Arabic and several supporting groups decided to leave their name off the official submission.
OWFI, CUNY Law’s HRGJ Clinic, and MADRE are seizing this pivotal moment in history to broaden the discourse on gender. Through their petition to the ICC, they seek to expand the understanding of discrimination, including where gender and sexual orientation & gender identity intersect. The groups’ coordinated advocacy and movement-building strategy was explored in an event held at CUNY Law School the day the petition was submitted, entitled, “Prosecuting ISIS Crimes against Women and LGBTI Persons“
The success of this petition could change the landscape of international criminal law, both highlighting and redressing the long-standing targeting of civilians based on gender, sexual orientation, and gender identity in the context of war and conflict. Appropriate action by the International Criminal Court and the international community at large would set a new precedent for prosecuting gender-based crimes and create a new tool for human rights advocates worldwide.