Reimagining Justice for Gender-Based Crimes at the Margins: New Legal Strategies for Prosecuting Isis Crimes Against Women and LGBTIQ Persons

Abstract

ISIS forces have enforced strict gender regulations on social behavior for both women and men, torturing and killing those who do not conform to the militia’s rigid gender policies. Human rights advocates have documented brutal accounts of sexual violence, shootings, beheadings, stoning, and burnings of men, women and youth, including those who are, or are perceived as, lesbian, gay, bisexual, transgender, and queer (LGBTQ), simply for defying the militia’s narrowly defined gender roles. ISIS fighters have forced women into sexual slavery. They have killed women doctors who do not comply with rigid dress codes when they interfere with the performance of their medical duties. They have executed women for being politicians, journalists, or for serving in other professional jobs not deemed appropriate for their prescribed gender roles.

ISIS fighters beat men who are unable or unwilling to grow beards.8 They threw men accused of homosexual behavior off buildings to their death. ISIS issued death warrants to women accused of lesbian behavior. ISIS has killed youth because of their alternative forms of personal expression, including having stylish haircuts or wearing western clothing such as skinny jeans, labeling them as “faggots.” These killings and other violations are evidence of a systematic persecution of persons based on gender.

While the International Criminal Court (ICC) has prosecuted a range of sexual violence crimes, it has yet to convict crimes of gender-based persecution like those committed by ISIS as well as other armed actors. As the international community continues to grant broader recognition of individuals’ rights to be free from discrimination and violence on the basis of gender, including gender expressions based on sexual orientation and gender identity, the time is ripe for the ICC to act. At the same time, in Iraq, discussions are underway on how to proceed with the prosecutions of ISIS fighters that have been captured and are being held without charge under Iraq’s Administrative Law.

For this reason, on November 8, 2017, advocates filed a new submission — the first of its kind — to the International CriminalCourt (ICC), to advance protection of the rights of women and lesbian, gay, bisexual, transgender, intersex, and queer 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) — 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.

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 justice processes. In effect, they are left out of history. For this reason, Iraqi activists, at great personal risk, have been documenting these crimes. Not only those committed by ISIS, but also by Iraqi government forces and other militias. They have preserved critical “information about perpetrators and their larger criminal networks.” Many of these same documenters have “also provide[d] safe passage and shelter to [people] at imminent risk of sexual slavery or death.”

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 submission 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.

Keywords: sexual orientation, gender identity, LGBT, LGBTIQ, gender, women, Iraq, conflict, ISIS, ISIL, International law, international criminal court, human rights law, international human rights law, international criminal law, sexual violence, rape, genocide, gay, lesbian, Iraqi women

JEL Classification: K33, N45, D74, D78