By Hawre Ahmed
Iraqi women are suffering from many oppressions, which they confront from every aspect, culturally, legally, socially, economically as well as politically. This article discusses that how the legal system in Iraq cannot address the violence against women particularly honor killing meanwhile violence against women has been clearly addressed in international human rights instruments, the Iraqi penal code potentially embraces the possibility of such discriminations.
Honor killing is mostly referring to killing a woman who has an affair with a man in extramarital relationship in order to purify the family’s or the tribe’s honor, mostly it is related to sexuality and loss virginity, carrying out by the male members of her family, but there are many other factors to honor killing such as; refusal of an arranged marriage, seeking divorce, sexual orientation, gender identity, gender expression, sex characteristic, victims of rape. The methods of killing include “stoning, stabbing, beating, burning, beheading, hanging, throat slashing, lethal acid attacks, shooting and strangulation. sometimes the femicide are executed in public to tell the other individuals in the community of possible consequences of engaging in what is seen as shameful, although occasionally males are also the victims of such violence in Iraq. ‘honor’ crimes most often take the form of murder, although they can also encompass other forms of violence such as “physical abuse, confinement, control of movement, deprivation of education, forced marriage, forced suicide and public dishonoring.
The phenomenon of honor killing is rooted in many countries around the world, many catalysts influence the amount of execution of honor killing according to the cultural, religious, political atmosphere of the regions, along with the masculinity and patriarchy and the perpetrators often don't face negative stigma within their communities, because their behavior is seen as justified.
Within the usual Iraqi social structure, the threat of being killed to remove the stain of dishonor is exercised, that characterizes a preventive measure to stop a woman from damaging the reputation of the family and tribe, and custom allows to be killed by her brother, husband, father or relatives in order to wash away the dishonor, it is a crime that usually occurs in rural areas, in cases where a woman has married a person of her choosing, without the approval of her family or tribe, the woman’s conduct is judged on the basis of how social standards, linked to the cultural inheritance represented by custom, this legacy, which is common to all Iraqis, views women as inferior beings subordinate to men, This image of women has grown, despite changes in society and in the status of women, women are still perceived as having inferior qualities that require them to be treated as not fully human, but “honor killing has existed from the code of Hammurabi, the first legislative document in history, punishes an adulterous woman by drowning.
The history of honor killing in Iraq and Kurdistan Region of Iraq (KRI) is unclear, the importance of aspect of the control of female sexuality is the almost century-long history of ethnic oppression and resistance to it, in which boundary making and community maintenance around the politics of belonging have been of crucial importance, in these processes of oppression and resistance, women—as the symbolic embodiment of the nation, territory and collectivity—and their bodies, sexuality and reproductive capacity have been the battlefield on which ethnicity, gender, class and generational oppression converge, In general, honor killing are prevalent throughout the Iraq and KRI, the frequency of honor crimes has decreased in some geographical areas such as cities, but in other more Islamic conservative areas honor killing is more widespread.
As an evasion, there are many ways which the women who are under threat of honor killing adopted to avoid the risk, firstly; many women who allegedly have an affair with men outside marriage choose self-immolation as a way to purify her family’s honor, sometimes as a result of being humiliated by rumors and gossips, secondly; the family of both sides reach a settlement by getting married of the woman and the man who involved the affair, thirdly; the women run away from her family and ask refuge from government’s shelters which are dedicated to the women under honor crime threats, fourthly; some women can manage to escape Iraq and KRI and cross the borders.
Honor killing in International Human Rights Instruments
The act of honor killing/crime is constituted a serious violation of the human rights of women and girls, and in particular violates the right to life and security of person, freedom from torture and cruel, inhuman, and degrading treatment, and the right to equality before the law and equal protection by the law, while women are generally the targets, these acts can be directed at individuals of any sex, often also for transgressing gender norms or for sexual behavior, including actual or assumed same-sex sexual activity. States are obliged to exercise due diligence to prevent, investigate and punish the perpetrators of crimes committed in the name of honor, to provide protection to the victims, states have to reject any reference to cultural, traditional or religious practices as a mitigating factor in cases of honor, and to ensure that such criminal offences result in automatic criminal prosecution.
Honor killings is not explicitly addressed in any human rights instruments, but it is self-evident violation against human beings, that could be simply seen as an action against the right to life may be found in various international human rights instruments, and the instruments request the states to take all necessary steps and measurements to eliminate all forms violations against women, in Universal Declaration of Human Rights (UDHR) Art. 1 “all human beings are born free and equal in dignity and rights...”, Art. 3 “everyone has the right to life...”, and Art. 7 “all are entitled without any discrimination to equal protection of the law..”, in International Covenant on Civil and Political (ICCPR) Art. 6.1 “every human being has the right to life...” and Art. 26 “all are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination on any ground such as race, sex...” in International Covenant on Economic, Social, and Cultural Rights (ICESCR) Art. 2.2 “the rights… will be exercised without any discrimination of any kind as race, color, sex...” in Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in most of the articles addressed the women rights and state obligations to protect and promote all rights, includes a definition of discrimination against women, and provides that state parties shall “accord to women equality with men before the law” further, honor killings are a most extreme form of “physical harm”, a form of violence that occurs within the family and affects women, therefore, honor killings are clearly a form of violence against women in the family.
Honor killings can unarguably violate also other rights such as the freedom from torture and inhuman treatment which are entitled in Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Honor Killing in Iraqi National Laws
Iraqi constitution is applied in Iraqi jurisdiction all over the region, according to the constitution Art. 2.1, addresses that no law should be enacted contradicts Sharia “Islam is the official religion of the State and is a foundation source of legislation: A; no law may be enacted that contradicts the established provisions of Islam, B; no law may be enacted that contradicts the principles of democracy, C; no law may be enacted that contradicts the rights and basic freedoms stipulated in this Constitution.”, this provision is ambiguous, because it is not clear who has the authority to define Sharia law, some Islam doctrines have the understanding that husband has the rights to discipline their wives, this article potentially is an obstacle to fulfill Iraq obligations under international laws.
The ordinary laws which is enacted by the national legislator such as laws are compatible with international treaties and conventions that Iraq has acceded or ratified, under Art. 19 of the Law on the Treaty No. 35 of 2015, the treaties enter into force towards the Republic of Iraq from the date of its ratification, that is, it becomes part of the domestic law and must be taken into account in legislation, a large part of these international treaties and conventions, which Iraq has acceded or ratified, relates to fundamental human rights and freedoms. Under Art. 8 of the Iraqi Constitution, Iraq is obliged to implement its international obligations, According to Art. 19 of the Law on the Treaties No. 35 of 2015 that the Convention or the Treaty comes into force towards the Republic of Iraq from the date of ratification but yet the Iraqi obligation under mentioned human rights instruments have not been fulfilled, despite its ratification of ICCPR, ICESCR,ICERD, CEDAW, UNCRC, and CAD.
According to the Iraqi Penal Code (IPC) Art. 409 “Any person who surprises his wife in the act of adultery or finds his girlfriend in bed with her lover and kills them immediately or one of them or assaults one of them so that he or she dies or is left permanently disabled is punishable by a period of detention not exceeding 3 years. It is not permissible to exercise the right of legal defense against any person who uses this excuse nor do the rules of aggravating circumstance apply against him” that means the honor killing is not regarding as a normal killing which the IPC addresses in Art. 405 “Any person who willfully kills another is punishable by life imprisonment or imprisonment for a term of 15 years”, which the perpetrators are punishable between 15 years and life imprisonment without mitigating circumstances, the Art. 409 in IPC was abolished in KRI according to the law No 3 in 2015 enacted in Kurdistan parliament, that means the surprisingly honor killing by her relatives is dealt as a normal crime as defined in Art. 405, but still the self-defense in the IPC is available in KRI, that, if her relative surprisingly catch her in an affair with a man in extramarital issue and self-defense is not applied for the wife or her partner if they commit a crime as a self-defense to avoid to be killed by the husband or her relatives, but self-defense is applying in Art. 405 in the normal crimes, mitigating circumstances for honorable motives exist in Art. 128, 130 and 131 in IPC, which allow perpetrators to defense themselves to all types of crime and not to one particular crime.
Another issue with honor killing in its extension, IPC Art. No 407 provides mitigating circumstance to a mother who kills newborn baby as it is honor purification says “any mother who, having become pregnant through fornication, kills her newly born child, out of shame is punishable by a term of imprisonment not exceeding 10 years or by a period of detention of not less than 1 year”.
In 2011, the Kurdish Parliament passed the Law No. 8 for the year of 2011, against domestic violence in the Kurdish region, the act provides a legal basis for a wide variety of violent acts to be prosecuted as criminal offences including honor killing.
Iraq has submitted seven Universal Periodic Reports to the CEDAW committee, addressed all violations against women including honor killing, explained the violations against women and their perpetuated statuses, such as custom, tradition, norms, and practices, in response the committee suggested some amendments includes recommendation to legal, social, economic and political reform that Iraq should “Adopt a comprehensive strategy to eliminate all harmful practices and stereotypes, in particular child marriage, temporary marriage and crimes committed in the name of honor, in conformity with articles 2 and 5 of the CEDAW, that includes awareness raising efforts targeting the general public, the media and religious and community leaders, in collaboration with civil society and women’s organizations” and the committee recommends that “repeal articles 128, 130 and 131 of the IPC to ensure that perpetrators of crimes committed in the name of honor cannot invoke the defense of honor as a mitigating circumstance for such crimes”.
Human Rights Watch in its report to the draft of Anti-Domestic Violence Law which Iraq authorities are working on to be enacted, recommended “Set out penalties for the crime(s) of domestic violence, and ensure it is harmonized with the Penal Code including repealing article 41 (1) which condones the use of domestic violence; removing penal code provisions allowing reduced penalties for perpetrators of honor crimes, and precluding the defense to domestic violence crimes relating to catching a wife or female relative committing adultery/sex outside of marriage; and repealing provisions that allow perpetrators of sexual assault or rape to escape prosecution or have their sentences quashed if they marry their victim”.
There are no accurate statistics for violence against women in Iraq and KRI, making it difficult to deal with the problem, in spite of limited data, all agree that the violence is widespread, some analysts claim, with reference to United Nations Development Fund for Women, that there are at least 400 honor killings a year; but most honor killings, suicides and other acts against women go unreported, In fact, after natural causes, honor killings are thought to be one of the leading causes of death for women in Iraq and Kurdistan.
Since 2003 after the fall of Saddam regime, violation against women has been increased because of deteriorating the political situation and armed conflicts, despite non-reporting cases, but statistics shows that the number of honor killing is enormous, in a statistics by Iraqi ministry of interior from 2003 to 2009, 233 women were killed as honor killing.
In KRI, between January 2014 and June 2015, the General Directorate to Combat Violence against Women received 11,157 reports of violence against women across all offices, this is includes 7,192 reports for the year 2014 and 3,965 for the first six months of 2015, the total of 11,157 includes 66 cases of murder, 85cases of suicide, 314 cases of burning, 160 cases of self-burning, 10,319 general complaints and 214 cases of sexual violence.
In KRG’s response to the Report on Human Rights in Iraq informed United Nations Assistance Mission for Iraq (UNAM) from July to November 2013, the police and judiciary received 2,353 allegations of violence against women The highest number of incidents were reported in Erbil (699), followed by Dohuk (664), and Sulaimaniyah (534), the incidents included 2,141 cases of physical abuse, 132 cases of self-immolation and 46 cases of sexual abuse. In addition, 23 women were reported to have been murdered. The statistics contradicts each other because of lacking formal directors to gather information.
Another authority who is responsible to report human rights violations in KRI is the Independent Commission for Human rights in KRI, in its report 2013 demonstrates that 38 women were murdered, 24 women committed suicide, 184 were burned, 101 women self-immolated.
In its report 2014 Independent Commission for Human rights in KRI announced that 32 women were murdered, 46 women committed suicide, 188 were burned, 96 women committed self-immolated, in its report 2015, 55 women were murdered, 64 women committed suicide, 198 were burned, 125 women committed self-immolated, and in its report 2016, 43 women were murdered, 74 women committed suicide, 220 were burned, 96 women self-immolated.
This article examined the status of honor killing in international human rights instruments and the national laws, honor killing explicitly have not been addressed in the conventions but can be seen as one of the kind of women rights violations from the right to life to the other basic rights, as well as this paper scrutinized the Iraqi and KRI national laws related to honor killing, shown how the domestic laws potentially embraced the violation against women particularly honor killing, as well as the statistics of the crimes which have been committed and the statistics shows that how this matter has been culturalized, It is clear that the number of honor killing is considerable as presented, despite lacking of departments for gathering information, and diverse mechanisms for conducting honor killing which is impossible to track every aspects of the crimes, sometimes criminals invent kind of misleading and fabricated case in order to escape from laws, the legal system of Iraq can not address the issue, in response to the situation, legislative system follows the cultural and tradition norms, give the perpetrates cultural justification, as a means of defense in Iraqi laws and court decisions regardless its obligations under international law.
In conclude; fighting against honor killing needs to adopt some steps, first of all Iraq should constitutionalize and nationalize the rights which have been addressed in international treaties and conventions, normalization honor killing under the name of cultural, religious, traditional justification should not be permitted, and urgent program to combat violation against women should be prioritized and adopted by the Iraqi authorities, although ratify other human rights conventions which Iraq has not been a part of them yet, adopting urgent multidimensional program to combat violence against women, culturally to introduce new platform for awareness rising including placing equality, justice, and women rights in its educational programs, politically to create smooth political atmosphere to provide equal opportunity to all that women can be heard from political stages to defend their rights, legally; Iraq needs to revoke the laws which violate the women rights, first of all revoking mitigating circumstances for honor killing in article 409, 128, 130, 131 in IPC. Socially Iraq and KRI shall introduce a program to combat against masculinity, women inferiority, patriarchy as well as stigmatization for the women who demand their rights.