Last edited: January 30, 2005

Iraq: Sexual Orientation, Human Rights and the Law

Started On January 22, 2005. Finished On January 29, 2005.

By Edward TJ Brown [not to be reproduced without his permission]
919 18 ST S Apt. 4
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Introduction: Are Their Really Homosexuals In The Middle East?

Gay1 history is still a topic that is gaining legitimacy in the western academic circles. Since the 1980’s a slow, but steady, number of non-fiction books on the first organized gay rights movement in the world began to appear. Before the late nineteenth century, only a handful of people—gay or straight—spoke up about the need to apply the western eighteen century ‘Age of Enlightenment’ principles of democracy, liberty, and equality to gay people. These individuals advocated some level of sexual freedom for gay people, and even protested police raids of what amounted to gay bars. However, it was not until the late nineteenth century that gay people began to articulate their own theories as to the etymology of sexual orientation and become political organized in the struggle for ‘homosexual emancipation.’

Historians still debate precisely why Germany became the birthplace for the homosexual emancipation movement. However, from the late nineteenth century up until 1933 Germany was home to a visible gay community, that included a open—often times fell into decadence—night life scene, numerous gay rights organizations and a world famous Institute For Sexual Science. The political wing of the gay rights movement found allies in their efforts to legalize homosexuality with the Social Democrats and to a lesser degree the Communists. However, in 1933 The Nazi Party burned down the Institute for Sexual Science and began a process of sending homosexuals to concentration campus. Thousands of homosexuals were murdered as part of the roughly twelve million ‘inferior’ men, women and children who were exterminated because of their religion, national origin, political beliefs, or disability. The next organized gay rights movement would arise in the United States of America in the late 1940’s. This movement was much less visible then the German movement and had fewer members but did have its legal and social victories. By the 1950’s the gay rights movement had returned to most of western Europe, but it was a 1969 riot at a New York City called the ‘Stonewall Inn’ that sparked the international gay liberation movement.

The various laws against homosexuals, meant that police frequently raided gay bars, harassed and arrested their patrons. One night in 1969, a typical police raid of a homosexual-drinking establishment turned violent when its patrons refused to be arrested quietly and violent resisted arrest. Some people have speculated that the rioters—most of which had little or no contact with the gay rights organizations at the time—fought back out of a sorrow over the death of actress Judy Garland. While others have suggested it was the rage of the way that organized crime and the police worked together to oppress gays. Still other people theorize that on that night a large number of gay people had come to the realization—influenced by the dynamic social changes occurring in America and Western Europe—that gay people no longer had to think of themselves as diseased, decadent criminals. Whatever the reason, the 1970’s brought forth an organized, if not fracture, movement that was loud and angry and hell. Version of the movement spread across the globe, with varying degrees of success. The outbreak of the AIDS epidemic in the 1980’s created a backlash, but by the end of the 20th century, developed democratic nations had made tremendous social and political process in respecting the human rights of gay people. However, the Middle East remained largely immune to the forces of social change. Several factors play into why the Middle East failed to develop much of a gay rights movement.

(1)      Many Middle Eastern nations did not gain full independence until the 1960’s—1970’s and those nations that were unified and independent were focused on foreign policy conflicts [i.e. Arab vs. Israel and Arab vs. Soviet] and economic development.

(2)      With the exception of Israel, most Middle Eastern nations were authoritarian regimes based on Islamic fundamentalism. Thus gay citizens had little or no free democratic institutions to openly influence public policy. Political parties or organized were prohibited. ‘Moderate’ nations that allowed for some degree of political and social freedom never extended to any challenge to the laws and opinion regarding sexual orientation.

(3)      The Islamic faith was largely left to be interpreted by the conservatives and fundamentalists who required a legal-social system of traditional heterosexual marriage, no sexual activity before marriage, and the treatment of homosexuality as a crime so horrible that it must not be named.

The result of these factors meant that in the Muslim world homosexuality was to be treated as an unspeakable vice, a serious crime, a disease, and gross obscenity. Up until the introduction of satilight television and the Internet, gay people in the Muslim Middle East had no means to explain their orientation [other then what they clergy said], much less the ability to see themselves as a downtrodden underclass. Most gay people married [often arranged], and lead double lives. The legal and social situation has not improved and outbreak of AIDS in the Middle East has been seen as divine proof that Muslim nations must never go down the ‘lewd and immoral’ path of the liberal democratic west. However, four interesting paths have developed in how homosexuality is treated in the Middle East. These two paths will help us to explain the legal situation of gay people in Iraq circa 2005.

The Western Model: Secular Liberal Democracy, Liberty, and Equality

The State of Israel is unique in the discussion of gay rights in the Middle East, because of it was founded by Zionist Jews who were heavy influenced by western and secular ideas of liberalism and democratic socialism. As a secular, multi-party liberal democracy, Israeli gay citizen began to organize in the 1970’s and by the end of the 20th century had achieved more legal progress then American gay citizens.

Can this model be transported to the rest of the Middle East? The Arab-Israeli conflict has hurt the possibility for Muslim gays to express solidarity with Jewish Israeli gays or vice versa. Although the Israeli gay rights movement gets much of its political support from liberal and social democratic political parties, who are more willing to build a just peace in the Middle East. Romantic relations between Jewish Israelis and Muslims Palestinians are not uncommon, and many gay Palestinians have sought asylum in Israel because they receive death threats and imprisonment for homosexuality in Palestine. However, a Muslim version of this model does exist in Turkey and Cyprus. In both cases the multi-party democratic government legalized homosexuality as a prerequisite to joining the European Union. Gay rights organizations are free to publicly organize and are building coalitions with other democratic leftist political parties and human rights interest groups. However, most Muslim Middle East nations follow a different legal model.

The Imprisonment Model

Most Muslim Middle Eastern nations officially view homosexuality [often referred to in the criminal code as ‘sodomy’] as a crime punishable by fines and imprisonment. In most of these nations, gay people are not allowed to organize or associate freely without fear of government harassment and arrest. The one exemption to this rule is Lebanon where a public campaign has begun to legalize homosexuality.2

The Capital Punishment Model

A handful of Muslim Middle Eastern (Afghanistan, Iran, United Arab Emirates, Saudi Arabia and Yemen) nations officially view homosexuality as a crime punishable by death. This punishment is indeed carried out, but sometimes the punishment is fines, imprisonment, deportation and corporal punishment. Of these nations there is some interest in Afghanistan and Iran.

It is unclear if the installation of an Islamic democracy in Afghanistan has changed their official legal position on homosexuality. In 2002 the nations Chief Justice said that homosexuality was still a capital crime, but that some other lessor form of punishment might be applied. In 2004 an American aid to the government was arrested for attempting to pay for gay sex and the prosecutor said that the man could get a jail term of 5–15 years. None of the Afghanistan political parties have any interest in gay rights, and it does not appear that the new democracy allows any one to publicly organize to change the laws against homosexuality.

Iran is also interesting because—aside from Afghanistan—it is the only of this group of nations to allow multi-party democratic elections to be held, although candidates deemed too liberal may be kept of the ballot. Yet, some of the left-wing Iranian political parties do take a stand in favor of gay rights online. To cite two examples:

(1) The Green Party of Iran advocates “Every Iranian citizen is equal by law, regardless of gender, age, race, nationality, religion, marital status, sexual orientation, or political beliefs.” The party also calls for a secular, liberal democratic Iran.

(2) The Communist Party of Iran calls for a secular, liberal democratic Iran. It also endorses, “We support any struggle for liberation and freedom against the Islamic Republic, and support any movement that persistently struggles for abolition and eradication of any kind of sexual, religious, national, political, economical, social and cultural discrimination.”

This suggests that when you have a multi-party democracy in a nation, even in a nation where the majority of the population is Muslim some of the left-wing political parties will support gay rights. That while public opinion may be homophobic, a legit multi-party democratic [which I believe neither of these nations have] process along with the freedom to create interest groups will create the possibility for gay citizens living in Muslim nations to get some measure of freedom. However, Iraq does not appear to follow any of these models. Before and after the dictatorship of Saddam, Iraq seems to follow the Egyptian model.

The Egyptian Model:

Egypt is seen as a moderate nation among Muslim nations. It reached out an early olive branch to Israel has a cosmopolitan mixture of European-Mediterranean and Arab-African Islam. The government does have a national assembly [with limited power] and various political parties and interest groups are allowed to exist [although no party or group may exist that disagrees with fundamentalist Islamic law]. The Egyptian criminal code on sex crimes is silent on the subject of homosexuality. Thus a reading of the criminal code would leave many people with the false impression that non-commercial, non-fraternal homosexual relations between consenting adults [eighteen years of age is the age of consent] in private would not be a crime. However, since 2000 the government has been involved in arresting groups of gays and indirectly making homosexuality as crime [to be tried to anti-terrorist courts] by using vague laws that prohibit:

(1)      Satanism

(2)      “Violating the teachings of religion and propagating depraved ideas and moral depravity”,

(3)      “Exploiting the Islamic religion to spread extremist ideas”

(4)      “Habitual debauchery”

(5)      “Contempt Of Religion”

Some experts suggest that usage of these laws to imprison and torture Egyptian gays [gay foreigners seem to be ignored in the police raids] is designed to drive public attention away from Egyptian’s high rate of poverty. Other experts have suggested that the raids [starting in 2000] were in a reaction to a push some gay Egyptians to create gay rights organizations, including a failed attempt to create an organization for Egyptian gay men living with AIDS/HIV. Whatever the reason, this model is carried out in Iraq where the criminal code is silent about homosexuality [until 2001], but the government could find some law to make homosexuality a crime if it wanted to.

Given the ultra-conservative nature of most Middle Eastern legal systems, most of the efforts to defend the human rights of gay Middle Easterners has come from outside organizations such as Amnesty International, Human Rights Watch, the International Lesbian & Gay Association and the International Gay & Lesbian Human Rights Commission. These organizations were run by westerners who did not live in the Middle East and had to rely on translators and news tidbits to try and get an accurate sense of the legal status of gay people in these countries along with how this legal status plays out on a daily basis. These organizations had been the only source that anyone could turn to if they wanted to get a sense of the legal status of gay people in the Middle East.

The 1990’s saw a second wave of gay Arab and Muslim transformation where they used the Internet to dating services, promote AIDS education, post articles to challenge conventional interpretations of Islam and to gain access to adult pornography. Unlike western international human rights organizations, Arab and Muslim gays were the ones leading this second wave of Middle Eastern gay rights. However, this second wave generally involved Arab and Muslims who lived in Europe or North America and were thus gay Muslims would start up a support group and a web site in New York City, but not in Saudi Arabia or Iran. It would not be until the late 1990’s when a select group of gay people living in the Muslim Middle East gained access to the libertarian Internet that you started to see organizations such as the Gay Middle East, and Gay Egypt. Not only where these organizations done by gay Muslims, but the Gay Middle East seems to be trying to build a Middle Eastern gay rights movement that cuts across deep rooted divisions of religion, and national origin.

Early 21st century gay people in the Middle East are beginning to realize what participates in the first homosexual emancipation movement in Germany already knew; people are born with a particular sexual orientation and it is not a sickness or a sin. Roughly five percent of a given population is gay, and they should work with democratic leftist political parties in a struggle for liberal democracy, tolerance, compassion, love, liberty, equality and justice for all men and women.

Sexual Orientation And The Law In The Republic Of Iraq

Most international human rights organizations agree that up until 2001 the Iraqi penal had law-prohibiting homosexuality. Their original lists of sex crimes deal with rape, incest, child abuse, prostitution and even cruising for sex in public.3 Thus when review these human rights organizations section on Iraq, you will find something written like this;

Iraq has no sodomy laws, the age of sexual consent is 18. If a minor is between 15 and 18 years old and does not resist the sexual act, the adult may be punished with imprisonment of up to 7 years. If a minor is 14 years or below, the punishment is a maximum of 10 years imprisonment.4

The International Lesbian & Gay Association has its 1998 online research guide available for free and it cites Article 395 of the Iraq criminal code, drafted in 1969 and edited by amendments.

Under Article 395 of the 1969 Penal Code, the age of consent to sodomy was set at 18. Where the minor is between 15 and 18 years old and does not resist the act, the adult may be punished with imprisonment of up to 7 years. Where the minor is 14 years or below, the punishment is a maximum of 10 years. (Schmitt and Sofer - “Sexuality and Eroticism among Males in Moslem Societies”)5 

Yet, the fact that the criminal or penal code was silent on the topic of homosexuality [or cross-dressing for that matter] does not mean that Iraq treated its gay citizens equally. While Iraqi was generally seen as a secular socialist dictatorship, it often invoke fundamentalist Islam in its polices. In 1993 Iraq’s United Nations representatives voted against the International Lesbian & Gay Associations application for consultative status as a non-governmental organization. Iraq claimed that their nation’s opposition was, “based on our firm belief that the work of this organization runs counter to the beliefs of all divine religions.”6

This leads up to a conclusion that until 2001, Iraq was following the Egyptian model where homosexuality was not an official crime in Iraq, but that the government had laws on the books to come down on Iraqi gays if they started to ‘come out’ and show signs of wanting to create gay rights political organizations.

In 2001 Amnesty International reported that in November of 2001, the Iraqi “Revolutionary Command Council, the highest executive body in the country, issued a decree to provide the death penalty for the offences of prostitution, homosexuality, incest and rape.”7 Thus the Iraqi criminal code has been amended to officially make ‘sodomy’ or homosexuality a crime punishable by death. Why did Iraq move away from the Egyptian model and into the Capital Punishment Model? Was this in response to some effort of Iraqi gays to organize? Was this an attempt by the Iraqi regime to increase its image among Islamic fundamentalist? Information is not yet available to answer these important questions. It is also unclear how many gay people were sentenced to death for homosexuality in Iraq from November 2001—May 2003 when the United States military took control of the capital, installed military rule, and installed a revised legal code that—among other things abolished the death penalty.

The U.S. Military Occupation Of Iraq

When the United States invaded Iraq in 2003 it created the Office for Reconstruction and Humanitarian Assistance (ORHA). This would be a temporary—but benevolent—American military dictatorship that would restore law and order, revise the criminal code, draft a temporary constitution and create a committee of Iraqis would gradually receive more and more authority. In May of 2003 the name of the organization was changed to something more creative [Coalition Provisional Authority (CPA)] and given a new dictator [Paul Bremer]. Bremer issued various rulings or decrees, which abolish the death penalty, removed virtually all restrictions on free speech and assembly, creating a Central Criminal Court of Iraq and revise the criminal code and the criminal procedure code back to their original status.8 This would seem to suggest that homosexuality would no longer be a crime in Iraq. Yet, for some unknown reason it is being treated as a crime in Iraq.

A New York Times Article in September 2004 discuses how one of the duties of morgue doctors at a certain Iraqi Institute is to “examine men accused of homosexuality, a criminal offense in Iraq. They must also approve all marriages of girls 14 or younger, verifying that they have reached puberty and are physically capable of intercourse.”9 The article asserts that the homosexuality is a still a crime, but fails to note the punishment or even the legal basis for this crime. The abolishment of the death penalty means that homosexuality can not be a capital crime, but it is hard to find provisions in the Iraqi criminal code of 1988, much less its original 1969 edition, that could be used against gays as is the case in Egypt. The possible answers lie within the criminal code and the first Iraqi post-Saddam government.

A Closer Look At The Iraqi Criminal Code & The Iraqi Interim Council

I have been able to find one English version of the Iraqi Penal 1969 Penal Code Amended several times throughout the 1980’s. I cannot find anything in the penal amended code—the CPA used the original 1969 penal code—which would prohibit homosexual relations between consenting adults in private or cross-dressing.

  • The Iraqi Penal Code does prohibit the willful or accident spread of a “dangerous disease that endangers that lives of others.” This could be applied to people infected with AIDS/HIV.
  • The following law [Paragraph 376] could apply to same-sex marriage. “Any person who obtains a marriage certificate knowing it to be invalid for any reason in secular or canonical law and any person who issues such certificate knowing the marriage to be invalid is punishable by a term of imprisonment not exceeding 7 years or by detention. The penalty will be a term of imprisonment not exceeding 10 years if the spouse, in respect of whom the reason for the invalidity has arisen, conceals that fact from his partner or consummates the marriage on the basis of the invalid certificate.”
  • Paragraph 398 reads, “Any male and female who have sexual intercourse or commit an act of buggery with each other with her consent and they are over 18 years of age and related to the third generation are punishable by life imprisonment.” From what I can gather this a prohibition of a man and a woman who are (1) related to each other and (2) over eighteen years old from engage in consensual buggery [anal sex].
  • Paragraph 402 (a) Does say that a person will be punished by a 3 month prison sentence and/or a fine no more then 30 dinars if they “make indecent advances to another man or woman.” This is the closest thing I could find to some type of Iraqi law that could be used to arrest homosexuals. It does concern itself with consent, and it does not explain what qualifies as an ‘indecent advance.’
  • Paragraph 403 prohibits the production, distribution, and possession or viewing of books, translations, art, films, etc that “violate the public integrity or decency.” This could be used to prohibit the operation of a gay publication or the discussion of anything related to homosexuality. Paragraph 404 covers “obscene or indecent songs.
  • Paragraph 502 prohibits “person who loiters in a public place or observes such a place with indecent intent or for an indecent purpose.”

These provisions existed in the original 1969 code, thus they would still be the nation’s laws. The exemption is that the restrictions on free speech and assembly were more or less abolished. The second possibility is that the Iraqi Interim Governing Council passed some law.

The Iraqi Interim Council was a committee created in July 13th 2003 by the United States to prepare a select group of Iraqis to run the government when the CPA dissolved and Bremer hand over sovereignty to this council [under a new name] on June 28th 2004. The United States appointed the committee’s men [and a few women] with care given to get representation from educated Iraqi Sunni, Shiite, Kurds Turks and Christians. The Iraqi Jews were the only ethnic minority left out. This Council passed a bill on December 29th 2003 that replaced the Iraq secular family law code with fundamentalist Islamic law. Women’s rights organization protest that this would erode the rights Iraqi women had in terms of marriage, divorce, and alimony. However, it is possible that this law had direct implications for Iraqi gays.10 The IIC was under the CPA, but the CPA left the Directive go through. Bremer’s passed other edicts that will likely have implications for Iraqi gays.

  • Order 23 [Issued On August 20th 2003] created a new Iraq army and established its new code of conduct. The Code of Conduct had no official prohibition on sodomy or homosexuality. It does have some vague prohibitions against one in the army doing anything that is ‘disorderly’ or would bring the reputation of the Iraq army down.
  • The CPA removes most restrictions on freedom of the press and freedom of assembly, and thus making it legal for Iraqi gays to start up their own publications and organizations.
  • None of the CPA Orders for equal government treatment and non-discrimination include ‘sexual orientation.’

The Iraqi Interim Government replaced the Iraqi Interim Governing Council, whose members chosen by the IIGC. The Iraqi Interim Government is not allowed to pass, amend or repeal any of the laws passed under the CPA [IIGC laws had to be approved by the CPA]. A temporary Constitution was put in place and an independent body runs the multi-party Iraqi elections.11 So did the IIGC December 29th Decree to install Shari law create some type of prohibition on homosexuality, along with stripping Iraqi women of their rights?

The New York Times article that mentions that homosexuality is a crime in Iraq, despite the CPA legal revisions that occurred, was written in September of 2004, while the IIGC Directive 137 was not passed until December. Thus some other law must have been operating in Iraq to making homosexuality a crime, but at this time I am unable to determine what this law was.

Iraqis Living With AIDS/HIV

The AIDS epidemic is a global problem that does not discriminate on the basis of race, color, creed, economic class, national or ethnic background, political or religious beliefs, sex or sexual orientation. However, in the Middle East AIDS is often seen as a problem caused by foreigners and homosexuals. No information exists about the fate of Iraqi people living with AIDS/HIV until the early 1990’s, despite the fact that Iraq reported its first case of AIDS in 1986. In 1994 the International Lesbian and Gay Association made the following report:

In July 1994 Iraq began testing visitors and citizens returning from abroad for HIV, the newspaper Al-Ra'i reported on Aug 22 1994. A special facility had been set up at the Trebil border crossing with Jordan, the main place of entry. Those who test negative get an AIDS-free certificate valid for six months. (RW/858)

I have not been able to learn the status of this special facility of Iraq. The next report on Iraqi people living with AIDS/HIV did not occur until May 6th 2003. The Body, an online resource for AIDS information reported that

On the ragged outskirts of Baghdad stands the ransacked remains of Iraq's only AIDS clinic—a prison of shame and death where even the families of patients were quarantined. Since the fall of the regime, doctors, patients and their loved ones have hesitantly been breaking their silence to reveal a harrowing glimpse of HIV infection under Saddam Hussein. “The patients and their families were treated like prisoners in guarded secret locations because the government decided that there was no AIDS in the country,” said hospital Director Dr. Karim Nada.

The Ibn Zuhur hospital's main point of entry is barred by an ominous sign warning: “Do Not Enter. You Will Contract Infectious Diseases.” The special HIV wing, set well apart from the rest of the facility, was deserted April 7 by the last AIDS patients, three women and two children. It was here where the sick and their relatives were detained, unable to have visitors or to leave, under permanent guard until their death.

Dr. Ali Hussain said he “will never forget the agony of these patients. We did not have any adequate treatment for them when the AIDS virus was discovered. Some of them died suffering abominably.” Families had nothing but soothing words to alleviate their suffering, Hussain added. 

For the families, sorrow continued after death because they were prevented from viewing the remains of loved ones, which were sealed inside double coffins and buried in two secret cemeteries in Baghdad. A mother of two hemophiliac children who contracted HIV from contaminated blood grieves that she “was never able to embrace the remains” of one of her children. “They did not let us bury our dead because the men of the regime conducted experiments on their bodies, which was like continuing to torture them,” she said.

Iraq registered its first HIV/AIDS case in 1986. Since then, 180 patients were officially tallied. Iraqi doctors, however, say the real number exceeds several hundred. [Source: Sonia Bakaric; Agence France Presse, 5/4/03.]

The next report to come out about Iraqis living with AIDS/HIV is an official report from the government in 2004. The Washington Times reported12:

Baghdad, Iraq, Jul. 31 (UPI) -- Iraq health officials said Saturday only 67 people in the entire nation are suffering from AIDS. The anti-AIDS national program, part of the Iraqi health ministry, said in a statement in the capital, Baghdad, that those infected with the disease were being treated at the expense of the government. It said the AIDS patients were receiving a monthly income of $1,000, in addition to free medical treatment in hospitals around the country. The statement added that recent Iraqi legislation was issued to allow AIDS patients in Iraq to “conduct their normal day-to-day lives.” It said the health ministry had undertaken “strict measures to ensure that this serious disease is not spread in Iraq,” including the compulsory testing of all those who enter the country, even Iraqi expatriates. It added that only three people tested positive out of 9,000 people who entered Iraq recently and insisted that the country was “among the cleanest in the world due to the strict preventive program being implemented.”

Thus it would appear that the Iraq government is giving Iraqi people living with AIDS/HIV some financial assistance, but there is no discussion of any time of sexual education program. The United Nations Office For Coordination Of Humanitarian Affairs issued a report in October 12th 2004 about what the Iraqi government was doing to fight AIDS/HIV.13

BAGHDAD, 12 Oct 2004 (IRIN) - Health experts in Iraq are worried that the number of sexually transmitted HIV/AIDS cases may be on the rise, following the discovery of new trends in modes of transmission.

“The trend of how a person is infected has changed from initially via blood transfusions to sexual transmission and this will shape the magnitude of the coming national strategic plan,” Dr Wahab Hamed, director of the AIDS Research centre in Iraq and manager of the National AIDS Prevention Programme, told IRIN in Baghdad.

According to Hamed, in the years before 2003 they detected around seven HIV positive cases per year, practically all of them related to haemophiliacs (who require blood transfusions to tackle an impaired ability to control bleeding).

In the last year the number has doubled and changed its route of transmission, he added. Fifteen new cases have been detected over the past few months, which is considered a high number in such a short period of time. What worries the medical experts is that 90 percent of these cases were infected through sexual contact.

“It is a situation that should be controlled before there is an outbreak,” Hamed added.

The HIV/AIDS control programme, part of the Iraqi Ministry of Health, was established in 1987 as a response to the first case detected in the country, when blood transfusions for haemophiliacs were found to be carrying the virus.

Since then, the programme undertook a wide range of activities concerning the prevention and control of HIV/AIDS and sexually transmitted infections (STIs).

According to the AIDS research centre in Iraq, a total of 448 HIV/AIDS cases, including those who died of the disease, have been detected since 1987.

At present Iraq has a total of 67 newly detected cases, of which 15 were reported in 2004. Of this figure, 25 were infected through sexual transmission, six are children who caught the virus from their mothers who were HIV positive when they got pregnant, 35 were through blood products used by haemophiliacs, and one was from a separate blood transfusion case.

In all cases the patients are HIV positive but have not yet developed full blown AIDS.

During Saddam Hussein's regime, some access to treatment reducing the impact of HIV/AIDS was available. But at the same time patients often suffered from discrimination and were sometimes kept away from society and treated like criminals.

Organised gangs allegedly took over blood centres on the country's borders, charging entrants a fee to avoid taking the test. Today an AIDS test is free of charge, but during Saddam's time US $50 was charged for the examination.

After the fall of Saddam Hussein, programme activities were halted as a part of the destruction of the health infrastructure and communication with registered HIV/AIDS cases was also lost. The main hospital for HIV/AIDS in Baghdad was looted and damaged along with the main central and peripheral HIV laboratories.

As a rapid response, the World Health Organisation (WHO), along with the Ministry of Health, allocated funds for HIV positive people and resumed health care for them in a relatively short period of time. However, many challenges and difficulties still face the programme, according to officials.

Voluntary counselling and testing (VCT) has now been introduced in the country for the first time as an added screening method.

Although Iraq lies in the category of having a low prevalence rate, according to a 2002 WHO report, the health authorities believe that the figures are largely underestimated, due to the limited development of health facilities and their ability to cope with HIV/AIDS/STI care and prevention.

Prevention campaigns, according to Dr Hamed, are one of the difficulties, as the killer disease is still a taboo subject in the country. “We will start step by step in order not to shock the population,” Dr Hamed said. 

Efforts will start with radio messages asking people to take a free test at a care and prevention centre in Baghdad. TV advertisements were a long way off, he said.

Under the previous regime there was no public information about how to prevent the disease. However, on World AIDS day, the government gave air time to the Ministry of Health to talk about the subject on TV.

“If we had more information from the media in our country, maybe I could have prevented myself from getting this disease. It is terrible and I hope that people will know more about it in the future,” one HIV-positive person told IRIN.

Another problem that carriers of the virus face is the shortage of antiretroviral drugs. Many of the drugs that were in hospital stores were looted or damaged, and due to their high cost the government is having difficulty in replacing them quickly.

“We have had a meeting with the Ministry of Health to discuss our problem and we asked for $1 million to complete our work, but it hasn't being released yet,” Dr Hamed said.

The Ministry of Health has invested $100,000 to date in the AIDS research centre in Iraq, together with other investments by WHO, but much more is required for the total finishing of the project.

WHO has been covering many activities at the centre and at other sites around the country. One of the first programmes that should be started quickly is the training of personnel since 95 percent of staff in Iraq are not trained in line with current standards, equipment and treatment methods.

“We are working on a full programme including the education of the health professionals in the total process of prevention and management of HIV/AIDS in Iraq,” Dr Naeema Gasseer, director of the WHO Iraq office based in Amman, Jordan, told IRIN.

She added that they have been working hard in the area of blood transfusions in order to prevent infected donations from being accepted at hospitals across the country.

For those who may lose their loved ones to HIV/AIDS, help cannot come soon enough. “I may lose my son. But I ask God to help those people reach all the Iraqis and prevent others from being infected from this terrible incurable disease,” a mother of an HIV-positive young man told IRIN.

The articles do mention that the discussion of sexuality is taboo in Iraq, but do not discuss the legal status of homosexuality or the access to condoms. It will be interesting to see how the new elected government will deal with AIDS/HIV policy. As the election fast approaches it is also worth noting that the Iraqi political parties are largely silent on gay rights issues.

Iraqi Political Parties and Sexual Orientation

Some insurgents reported that they were killing Americans soldiers and, civilians supporting the Americans because they were trying to prevent gay marriage from being legalized in a liberal democratic Iraq. This is a stupid argument to make as only one political party—which is boycotting the January 2005, election—has any public statement about gay right issues. If gay people are allowed to create organizations to support gay rights, then the opinions of the various political parties is will be of interest.

In Iraq only the Worker-Communist Party of Iraq [WCPI] which has this an interesting platform plank that offers Iraqi gay citizens any hope.

1 - Free and consensual sexual relationship is the undeniable right of anyone who has reached the age of consent. The legal age of consent for both women and men is 15. Sexual relationship of adults (persons over the age of consent) with under-age persons, even if it consensual, is illegal and the adult party is prosecuted under the law.

2 - All adults, women or men, are completely free in deciding over their sexual relationship with other adults. Voluntary relationship of adults with each other is their private affair and no person or authority has the right to scrutinize it, interfere with it or make it public.

3 - Everyone, especially the youth and adolescents, should receive sexual education, and instruction on contraceptive methods and safe sex. Sexual education should be a compulsory part of high school curricula. The state is responsible to rapidly raise the population's scientific awareness of sexual matters and the rights of the individual in sexual relationship, by putting out information, setting up clinics and advisory services accessible to all concerned, special radio and TV programs, and all other effective methods.

4 - Contraceptives and VD prevention devices should be freely and easily available to all adults.

The W.C.P.I seems to have a general interest in sexual freedom, liberal secularism and defending adults right to privacy, but they appear to be boycotting the upcoming January 2005 national elections. The other Iraqi political parties were not eager to answer my questions about where they stood on gay rights issues. For example, the

‘Pro Democracy Party’ replied that none of the Iraqi political parties have position on gay rights issues and that no Iraqi citizen has any interest in gay rights issues. I have prepared a rough document of where the democratic liberal political parties stand on gay rights issues.

Conclusion: Legal Status of Gays and the Future Of Gay Rights In The Middle East

Homosexuality remains a crime in Iraq despite the fact that the criminal system currently in use—the original 1969 penal code—does not seem to prohibit it. Further information will need to come to light before we can determine on what specific grounds, is homosexuality still a crime in Iraq. However, the research conducted thus far does present a possible answer to the current legal question as well as providing some groundwork for where Iraq gay people will need to go in their struggle for human rights.

As I finish this report, January 29, 2005, the Iraqi people are having their first free election in decades. The Bush Administration is already declaring it to be a success, even as the precise election outcome has yet to be determined. Will the high minded talk about promoting liberty benefit Iraq gays, or will it just be a smokescreen for ‘neo-conservative’ people that care very little about promoting liberty beyond what is good for the business world? Will the newly elected Iraqi government stand up for the human rights of all it is citizens; with discrimination based on race, color, creed, class, sex or sexual orientation? Will Iraqi gays begin to organize in an effort to change the laws and public opinion with regards to homosexuality? To this date I could only find one Iraqi gay rights organization and it may be run by exiles.14 At this time there is reason to be cynical and hopefully about the future of Iraq.

On one hand, the regime change does not appear to have legalized homosexuality, but it should be replaced the death penalty with a lessor sentence. Most of the Iraqi political parties refuse to offer any position in favor of gay rights, except the political party that is not participating in the January 2005 elections. The two major political factions most likely to win a majority of seats are the ‘Pro-Iranian theocracy’ and ‘Pro-Secular, With Ties to the CIA’. Thus rumors will begin to circulate that Iraq is doomed to be in the hands of Iran or the CIA. Yet, an Iraqi gay blogger became famous for his writings during the war and a motion picture is going to be made about his life in Iraq during the war.15 The provisional Iraqi government was actively helping people living with AIDS/HIV and it is possible that a legal framework could exist in Iraq to advocate for gay rights, but that is only speculation at this point.

In the end, Iraqi gays are going to have to want the use the new technology and their liberties to create change. If Iraqi gays are too afraid to act responsibly and get organized politically then nothing will change. If they are content to use the Internet to simply to download pornography and get a romantic date, they will accomplish nothing. Only time will tell if the U.S. occupation and regime change in Iraq will lead to a free and democratic Iraq. However, no amount of time is needed to know that future of gay rights in Iraq is in the hands of the roughly four percent of the Iraq population is gay or lesbian.

Suggestions For Further Research

At this time I am still waiting to hear back from the author of the New York Times article that listed homosexuality as a crime. However, some one who was fluent in Arabic or had friends in Iraq might be able to do some research on the 2001 amendment that made homosexuality a capital crime. We know very little about what it was like to be an Iraq gay before 2001 and we have no idea how many people were actually sentenced to death for homosexuality before the CPA replaced the criminal code and all its amendments with the original 1969 version. Further research will need to be done to determine on what legal basis was homosexuality still being treated as a crime during the rule of the CPA and the IIGC. There is certainly plenty of more research to do, but it would require some one who could speak the local language and had access to Iraqi laws, court documents and so forth.

When the new government is elected it will be free to make its own laws, and it will be important to try and keep updated on what laws are passed in order to get a sense of the legal status of Iraqi gays.


1 For the purpose of the article when I use the term ‘gay’ or ‘gay people’ I mean gay, lesbian, bisexual and transgender people.

2 When talking about the legal status homosexuality, we are talking about homosexual relations between consenting adults in private. We are not talking about adultery, prostitution, the sexual exploitation of minors, or public sex. The age of consent for homosexual or heterosexual relations should be equal, but will very from nation to nation.

3 I was able to view a translation of the Iraqi criminal code from 1988. The code has been amended and notes the year when each amendment was made.

4 See section on Iraq at

5 The International Lesbian and Gay Association [I.L.G.A.] was responsible for some of the early research on the legal status of gay people in the Middle East. It published its ‘Pink Book’ in 1985and released a revised edition in 1988, and 1993. The other source of legal information is Arno Schmitt & Jehoeda Sofer 1991 book titled Sexuality and Eroticism among Males in Moslem Societies.

6 Unofficial transcript by ILGA New York observers.

7 Amnesty International Report 2002 On Iraq.

8 Bremer issued a degree [Order Number 7 on June 10th 2003] declaring that the third edition Iraq legal code of 1969, minus a few sections, would be the nations criminal code. 

9 The New York Times. “Killings Surge in Iraq, and Doctors See a Procession of Misery.” September 26th, 2004. Written by Alex Berenson. The entire article can be seen for free online at Sodomy Laws.

10 It was called Directive 139. Apparently it was passed with little debate and when many of the moderate and secular council members were not present.

11 The interim Iraqi Constitution was created by the IIGC on March 8th 2004 and went into effect on June 28th of that year. Its official name is the Law of Administration for the State of Iraq for the Transitional Period.

12 The Washington Times “AIDS cases in Iraq low.” July 31st 2004.[].

13 United Nations Integrated Regional Information Network. “IRAQ: Focus on HIV/AIDS.”[].October 12th 2004.

14 The Iraqi Scientific Humanitarian-Committee.

15 Salam Pax. [] Aside from the upcoming feature film, this person has been hired to write for various American and British publications. Thus far all his writing has avoid the topic of gay rights.

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