Last fall, the City University of New York (CUNY) School of Law convened an expert panel to discuss international legal precedents that are being used to investigate and prosecute gender-based persecution perpetrated by the Islamic State of Iraq and Syria (ISIS). The event was held just before the filing of an Article 15 Communication by MADRE, the Human Rights and Gender Justice (HRGJ) Clinic of the CUNY School of Law, and the Organization of Women’s Freedom in Iraq (OWFI), with help from the law firm Debevoise & Plimpton. The petition—the first of its kind—calls on the International Criminal Court (ICC) to open a preliminary examination into the situation of gender-based persecution by ISIS in Iraq, and 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.
Women and LGBTIQ people in Iraq have long endured discrimination for failing to conform to traditional gender roles. However, when ISIS invaded Iraq in 2014, fighters began to violently enforce stricter gender roles. According to ISIS doctrine, women were viewed as either sub-human slaves, or relegated to the domestic sphere, while men were required to conform to a violent form of masculinity in order to be considered “true men.”
Failing to adhere to prescribed gender roles led to harsh punishment or death for those living under ISIS. In October 2015 members of ISIS’s all-female policing brigade killed a 20-year-old pregnant woman for lifting her niqab in public to drink water. ISIS fighters threatened and harassed women doctors and nurses for not complying with rigid dress codes while tending patients, and in 2014 they murdered a woman doctor for speaking out about the dress code. Women and men accused of being homosexual were raped and executed, regardless of their actual sexual orientation.
During ISIS’s violent campaign to regulate gender expression in territories under its control, no one was immune from scrutiny. Panelists discussed the widespread and systematic persecution against not only women and LGBTIQ persons, but also heterosexual men that failed to adhere to ISIS’s strict gender norms. ISIS strictly regulates all forms of gender expression, imposing rigid definitions for what constitutes masculine and effeminate characteristics. For example, ISIS fighters publicly flogged or beat men for shaving their beards or wearing “skinny” jeans, accusing the victims of engaging in “homosexual” behaviors. ISIS courts routinely sentenced men to death for failing to conform to ISIS’s idea of masculinity, often throwing victims off buildings or beheading them publicly to perpetuate the stigma against LGBTIQ persons.
Currently, the Iraqi justice system’s handling of ISIS crimes focuses on terrorism, but going after ISIS fighters under counterterrorism laws misses specific crimes committed by ISIS fighters against the most marginalized groups in Iraq, women, girls, and LGBTIQ people. Any national or international prosecutions of ISIS should prioritize the worst abuses, and specifically gender-based abuses.
Broadening the focus to gender-based persecution allows for a broad range of crimes committed by ISIS to be prosecuted, and would bring justice to victims that suffered at the hands of ISIS fighters during the conflict. The filing of this ICC communication represents the first time a case has been brought to an international court documenting systematic crimes committed against women, men, and LGBTIQ persons based on their gender expression. Through this lens, we can focus on prosecuting not only sexual violence committed against women during the conflict, but also the persecution of men and women that fail to conform to prescribed gender norms, including the systematic targeting and killing of LGBTIQ persons by ISIS. This kind of prosecution would deliver justice to often forgotten groups of people during conflict, like the brave women doctors that stood up to ISIS’s dress code, or the young Iraqi men that were raped and killed because they didn’t conform to ISIS’s idea of a “true man.”
At the panel event, Iraqi activists discussed the work they are doing to not only provide services and protections to victims of violence in Iraq, but also collect robust documentation of gender-based persecution by ISIS and other armed groups in Iraq. The thorough documentation provided by our local partners laid the foundation for the ICC communication, and will pave the way for a new understanding of gender-based crimes committed during conflict.