Criminal Law in Iraq
Contrary to some international media reports, homosexuality per se is not illegal in Iraq and as far as we can tell never has been illegal. However there have been a number of reliable reports of extra judicial persecution, assault, and murder of gay men in Iraq.
The Penal Code 111 of 1969 and the Criminal Procedure Code 23 of 1971 comprise the backbone of the Criminal Justice System in Iraq.
Following the 2003 invasion of Iraq, the US controlled Coalition Provisional Authority (CPA) issued a number of orders, resolutions and memoranda directly amending and supplementing the existing laws of Iraq. Save where subsequently repealed or amended by the Government of Iraq, those CPA laws remain in force.
With effect from 10 June 2003, CPA Order 7 Section 2(1) provided that “the Third Edition  of the 1969 Iraqi Penal Code with amendments, registered in Baghdad on the fifth day of Jumada I 1389 or the nineteenth day of July 1969, shall apply”. This effectively turned back the clock and applied the Penal Code as it existed at the beginning of 1985, incorporating only amendments made up to that date.
If there were any amendments to the Penal Code criminalizing homosexuality introduced by the Ba’athist government in the 1990s and early 2000s as part of packages of laws to gain the support of religious leaders, they would therefore be of historical interest only. Media, NGO and internet reports referring to an amendment to the Penal Code in 2001 imposing the death penalty for homosexuality are therefore inaccurate if they suggest that such an amendment would still be the law in Iraq. In addition they are inaccurate in that the Revolutionary Command Council Resolution 234 of 2001 (Article 1) was expressly concerned with sodomy or indecent assault committed without consent. They are accurate only in recording that the death penalty was imposed for such matters. However the operation of the death penalty was suspended by CPA Order 7 Section 3(1) and although re-instated for specific crimes by the Interim Government on 8 August 2004 by Decree Number 3 of 2004, the crimes listed in Resolution 234 of 2001 were not amongst those specific crimes.
Homosexuality is not a crime in Iraq. Articles 394 and 397 of the Penal Code properly criminalise sexual assaults on minors but may be worthy of attention given that they are used to impose severe penalties on juveniles engaging in consensual sexual activity where e.g. both parties are under 18. Article 401 concerning immodesty in public could be used against those forced by circumstance to meet in public places or arguably against those meeting in cafes or other places.
‘Religious Courts’ and shari’a
The general courts system in Iraq does not include religious courts.
Some of the various religious groups and militias who have at times controlled areas of Iraq in the period since 2003 have purported to set up ‘religious courts’ which apply shari’a to a wide range of issues including criminal matters. Most of these ‘courts’ do not operate any more. None of them have official status.
It has been reported that in 2006 Grand Ayatollah Sistani issued an opinion (fatwa) concerning homosexuality (which has since been removed from his website) recommending that homosexual relations should be punished with the utmost severity, and urging the death penalty. If accurately reported, this is an opinion (from an important and influential source) as to what the shari’a position should be. It is not definitive nor does it apply as the law of the land in Iraq.
Article 2(1) of the 2005 Constitution of Iraq states:
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.
In the Civil and Political Rights section of the constitution, the following rights are guaranteed:
Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.
Every individual has the right to enjoy life, security and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.
Equal opportunities shall be guaranteed to all Iraqis, and the state shall ensure that the necessary measures to achieve this are taken.
First: Every individual shall have the right to personal privacy so long as it does not contradict the rights of others and public morals.
There is no crime or punishment except by law. The punishment shall only be for an act that the law considers a crime when perpetrated. A harsher punishment than the applicable punishment at the time of the offense may not be imposed.
The State shall guarantee in a way that does not violate public order and morality:
A. Freedom of expression using all means.
B. Freedom of press, printing, advertisement, media and publication.
C. Freedom of assembly and peaceful demonstration, and this shall be regulated by law.
A number of confirmed reports exist of extra judicial persecution, assault, and murder of gay men in Iraq. Members of the Iraqi Police and Iraqi Armed forces have on occasions been involved in these actions. They are acting outside the law.
Perpetrators, who can include family members, are frequently not brought to justice and when they do appear before a criminal court, the penalties imposed can be reduced on the basis of Article 128 of the Penal Code which states:
(1) Legal excuse either discharges a person from a penalty or reduces that penalty. Excuse only exists under conditions that are specified by law. Notwithstanding these conditions, the commission of an offense with honorable motives or in response to the unjustified and serious provocation of a victim of an offense is considered a mitigating excuse.
(2) The court must identify in its decision the excuse that discharges a person from a penalty.
UPDATE: On 29 May 2009 it was widely reported that Muqtada Sadr, whilst describing homosexual behaviour as ‘depraved’, called for an end to anti-gay violence. His Mahdi army are reported to have been behind many murders and beatings of gay men.
UPDATE: In August 2009, Human Rights Watch published a report entitled ‘They Want us Exterminated: Murder, Torture, Sexual Orientation and Gender in Iraq‘ (also available in العربية). The reportage is shocking and convincing although the legal analysis is not perfect (the statement in footnote 60 on page 27 that ‘in any case Revolutionary Command Council decrees are no longer in force under Iraq’s post-invasion government’ is much too broad. Some RCC decrees have been expressly repealed, still others may be unconstitutional and post 1984 – pre 2003 amendments to the Penal Code were repealed by CPA Order 7 Section 2(1). Many other RCC decrees remain in force). A good argument is made concerning the connection between anti-gay violence, honour crimes and mis-treatment of women.
On 19 February 2010 Fox News reported that Iraq had told the UN Human Rights Council that it would not commit to investigating abuse against homosexuality