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Friday, 30 September 2011

Iran's repression of LGBT to face challenge at UN

Saghi Ghahraman
Iran's human rights violations on the grounds of sexual orientation and gender identity will be considered by the United Nations Human Rights Committee Universal Periodic Review 17 October.

Human Rights Watch has made a detailed submission, as has Amnesty International. Excerpts from Amnesty's submission follows below as does the submission of the Iranian Queer Organization - IRQO.

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By Saghi Ghahraman (IRQO)

Right after the revolution, execution of Gay and Transsexuals began, by the ruling clergies, illegally; it was legalized in 1995 - two decades after the revolution – when Shari’a law, Islam’s Code of Conduct, legally replaced Iran’s penal code.

Article 110 – executions based on sodomy; Article 130 – executions based on lesbianism; Article 220 – granting fathers the right to kill their children, recognizing fathers as blood-owners of their own children, turned State and Society, equally, into executioners of gays, lesbians, bi, and transsexual population, and also the heterosexuals; clergies have used sodomy laws against those prisoners who couldn’t be executed or persecuted otherwise.

Shari’a law is not only responsible for killing of LGBT members of society in Iran, it is also the basis of generations of LGBT’s lack of parenting, education, carrier, housing, and overall security and safety.

The fact that no LGBT Iranian dares to introduce themselves as L, G, B or T by their own voice, face, name is because of the fear-mongering articles of Shari’s sodomy law.

Since the government in Iran doesn’t offer any explanation for hostility against the gay community, and because there are signs of lack of relevant information in the government re homosexuals, I would like to quote a gay blogger’s advise to Mr. Ahmadinejad when he was first elected president of Iran on 2005:
"I urge you, Sir, as the president of Iran, to employ a team of medical scientists and lawyer to study and investigate homosexuality, come up with a result of the studies, and present it; if they announce homosexuality illness or crime, we oblige; if they say it was not, you, as the state of Iran, oblige, and decriminalize homosexuality and let us live in peace."
The task has not been undertaken by the government Iran, curiously.

While Mr. Ahmadinejad claims 'There Are No Homosexuals in Iran', his statesmen and spokespersons claim 'Homosexuals Are the Force behind Iran’s Green Movement'. Question is: Do we not have homosexuals in Iran? Or, we do, and they’re so many and so capable as to be the back-bone of a huge civil movement as Iran’s Green Movement? Question is: what is considered crime, or what is considered crime on the part of homosexuals? Sexual orientation, or doubting patriarchy in the face of a primitive ideology?

Living as a Queer woman over 50 years, a Queer poet over 20 years, directing a LGBT advocacy organization over five years, I have been witness to the horror the community in Iran goes through, everyday, not only by way of murders and executions but in everyday life of Not Living a simple, decent, dignified life human beings deserve in the realm in the Age of Democracy and Human Rights. And I am not talking only about those of our children who are disadvantaged and deprived, but also about gay professors, TS engineers, lesbian and gay specialist medical doctors, gay and lesbian poets, writers, artists, journalists and more, of highly accomplished status, all working inside Iran, who are victims in the hand of a hostile set of laws, and are most vulnerable.

I would like to offer the government of Iran to give account and explanation for violations of LGBT human rights. Or, to replace the primitive penal code of Shari’a law with constitutions based on 21st century human rights. Or if either is not doable, I would like to suggest that Mr. Ahmadinejad, the head of state of Iran, in his trips to the UN, travel to the USA on the back of a camel. After all, we, the LGBT of Iran shouldn’t be only ones treated with the mind-set of the dark-ages of 1400 years back in history.

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Amnesty International has called on the Iranian authorities to cooperate fully with all UN human rights mechanisms, including by allowing the Special Rapporteur on the human rights situation in Iran to conduct fact-finding missions to Iran.


CONSTITUTIONAL AND LEGAL FRAMEWORK WITHIN WHICH THE COVENANT IS IMPLEMENTED (ARTICLE 2)

Paragraph 1 of the list of issues questions whether the provisions of the Covenant have been invoked before Iran’s domestic courts. In this connection, Amnesty International notes that Article 9 of the Civil Code provides the following:

“Treaty provisions which have been, in accordance with the Constitutional Law, concluded between the Iranian Government and other governments, shall have the force of law”.

This is not mentioned in Iran’s state report, however, and it is unclear whether the judiciary considers the Covenant’s provisions as part of Iranian legislation.

Iran ratified the ICCPR in 1976, before the establishment of the Islamic Republic of Iran, but the Iranian authorities have not sought to change its status within the domestic legal order. One defence lawyer told Amnesty International that she feared to refer to the provisions of the Covenant in court because of a perception that judges would view this as “monarchist” or “anti-Islamic”, to the detriment of her client.

The Committee questions “how article 4 of the Constitution (requiring that all civil, penal, financial, economic, administrative, cultural, military, political and other laws and regulations are based on Islamic criteria) is consistent with the provisions of the Covenant”. In Amnesty International’s assessment, the Iranian authorities interpret this Article and other “claw back” articles of the Iranian Constitution to qualify rights guaranteed under the Covenant, and also interpret Islamic law in such a way as to provide the legal pretext for the violation of several Covenant rights.

In particular, the Iranian authorities’ interpretation of the requirements of Islamic law under these Constitutional provisions leads to discrimination in law against ethnic and religious minorities, women, and the lesbian, gay, bisexual and transgender (LGBT) community, as well as against those whose political opinions differ from those in the ruling establishment. This interpretation of Islamic law also permits the imposition of punishments amounting to torture, the use of the death penalty for many “offences” which do not constitute “the most serious crimes” under Article 6(2) of the Covenant, and for torturous methods of execution such as stoning.

In other cases, the authorities fail to uphold even the limited Constitutional human rights safeguards leading to serious violations of Covenant rights in practice. Amnesty International continues to call on the Iranian authorities to ensure that Iranian law and its implementation are fully consistent with international human rights law in general, and the Covenant in particular.

DISCRIMINATION AGAINST LESBIAN, GAY, BISEXUAL AND TRANSGENDER INDIVIDUALS IN LAW AND PRACTICE (QUESTION 5)

Lesbian, gay, bisexual and transgender (LGBT) individuals face harassment and persecution, cruel punishment of flogging or even the death penalty for same-sex sexual activities.

Same- sex sexual activities are prohibited for both men and women under the Hodoud section of the Penal Code. LGBT individuals also face hostility from a society which is intolerant of sexual identities other than heterosexuality.

According to Articles 110 and 111 of the Iranian Penal Code, penetrative “sodomy” is punishable by death, although the method of execution is at the discretion of the judge. Non-penetrative sexual acts carry penalties of between 60 to 100 lashes, although if one of the two men is a non-Muslim and is deemed the active party, he could face execution (Articles 121, 123 and 124 of the Penal Code). Non-penetrative acts which are repeated on four occasions, having been punished on each occasion, will be subject to the death penalty on the fourth occasion (Article 122).

In January 2011, two members of the Kurdish minority, known only as Ayoub and Mosleh, were reported to be facing execution in Piranshahr, north-west Iran. They were alleged to have taken part in and filmed sexual acts between men. Amnesty International wrote to the Head of Iran's Judiciary in January 2011, seeking clarification of their current legal situation and urging him to prevent their execution if they have been sentenced to death. No response had been received by September 2011.

Three men, identified only as "M. T.", "T. T." and "M. Ch." were reportedly executed in Karoun Prison, Ahvaz in Khuzestan province on 4 September 2011 after conviction of “sodomy” under Article 108 and 110 of the Penal Code. The reports contained no allegation that they had committed rape.

There is no separate offence of male rape. Article 111 of the Penal Code provides that “sodomy will result in execution provided both the active and passive parties are mature, sane and consenting”, with the presumption being that in the absence of these requirements, the individual would not be subject to prosecution for “sodomy”. Activists for the rights of LGBT persons believe that this has in some cases led to one party to consensual sexual activity claiming to have been raped in order to avoid execution.

“Ehsan” was arrested in 2008 at the age of 17 after a man brought a complaint against him and two other youths, alleging that the three had attempted to rape him. Reportedly tortured for almost a month, “Ehsan” “confessed” to the charges during interrogations, but later in court withdrew his “confession” and denied all charges. Fars General Court convicted “Ehsan” of “sodomy” (lavat), and sentenced him to death. Of the Court’s five judges, one deemed “Ehsan” not guilty. The man who initially pressed charges withdrew his allegations against all three accused youths prior to the first trial. The death sentence was confirmed by Branch 13 of the Supreme Court in Tehran and once “Ehsan” turned 18, he was transferred from a juvenile detention centre to Adel Abad Prison in Shiraz, where he is believed to remain on death row although efforts are said to be underway to try to get his death sentence overturned.

Makwan Moloudzadeh, a member of the Kurdish minority in Iran, was hanged on 4 December 2007 in Kermanshah Central Prison after conviction of the rape of three other boys allegedly committed when he himself was only 13. His trial, held in the western cities of Kermanshah and Paveh, was grossly flawed. He withdrew his “confession” to having had a sexual relationship with a 14-year-old boy in 1999 in court, saying he had been tortured or otherwise ill-treated to make it. The complainants withdrew their accusations in the course of the trial, and said they had either lied or had been forced to lodge their complaints. No investigation of his allegations of ill-treatment, or of those made by the witnesses against him who alleged that they had been required to provide false testimony, is known to have been investigated by the trial court or other Iranian authorities. In sentencing Makwan Moloudzadeh to death, the judge relied on his own, personal "knowledge" of the case; on the basis of this, he determined that Makwan Moloudzadeh could be tried as an adult and that he had committed the alleged offence and sentenced him to death. The conviction and sentence were confirmed by the Supreme Court about a month later. Makwan Moloudzadeh’s lawyer sought a judicial review of the case, and in November 2007, the Head of the Judiciary, Ayatollah Shahroudi, granted a temporary stay of execution pending a further review of the case. On or around 1 December 2007 this review appears to have found no fault with the verdict and sentence and Makwan Moloudzadeh was hanged three days later, even though his lawyer had not been given advance notice of his client's execution, although this is required by Iranian law.

“Lesbianism” (sex between women with their sexual organs) is punishable by 100 lashes, or, on the fourth conviction, with execution (Articles 129 and 131). If two women “lie under the same cover without necessity” they will receive less than 100 lashes, and on the fourth occasion, 100 lashes (Article 134).

The LGBT community face harassment and arrest, as well as unwarranted interference in their private lives. Eighty-seven people were reportedly arrested at a private party in Esfahan in May 2006, during the annual crackdown on “immoral behaviour”. Many were beaten, with some reported to have suffered broken bones. At least eight of those arrested were men believed to have been wearing clothes generally associated with women at the time of their arrest. A judge was reported as saying they would be charged with consumption of alcohol, and “homosexual conduct” (ham 26jensgarai). Of those originally arrested, 24 men were later tried for “facilitating immorality and sexual misconduct,” as well as “possessing and drinking alcohol”. In June 2007, an Esfahan court found 19 of them guilty of various combinations of these charges. Seventeen were sentenced to fines of 10 million to 50 million rials (US$1,000-5,000) for “facilitating immorality and sexual misconduct” and at least four were sentenced to up to 80 lashes for drinking or providing alcoholic drinks. Five were acquitted of offences related to alcohol. The flogging sentences were later implemented.

LGBT individuals also come under pressure from family members, friends, employers and others to conform to socially accepted norms. In some cases, women have even been killed by members of their families for having same-sex relationships. For example, a 17-year-old girl identified only as Z.A. was reportedly killed in Baneh on 26 February 2009 in an “honour killing” for such a relationship.

Gender-reassignment surgery is legal in Iran, which does give an avenue for some trans- gender individuals to have their gender reassigned. In one case, it was reported that a woman called “Shaghayegh” petitioned the Family Court in Tehran to be allowed to marry “Ardeshir”, who had undergone gender reassignment surgery, as her father was refusing to give his permission. However, it is also claimed that LGBT individuals can be pressured into such operations as they allow the authorities to maintain a polarised view of sexuality and gender. Those who do not fit into the normative views of heterosexuality are seen as “gender troubled” who either need to have their “troubles” dealt with by medical intervention, or, if they refuse to do so, are seen as criminally and morally perverted and therefore requiring punishment, including flogging or execution.

Amnesty International continues to call on the Iranian authorities to:
  • repeal or amend all legislation which provides for or could result in the discrimination, prosecution and punishment of people solely for their sexual orientation or gender identity. This includes those laws which explicitly criminalize consensual sexual conduct between adults of same-sex or transgender individuals; public order legislation used as a pretext for prosecuting and punishing people solely for their sexual orientation or gender identity; and laws prohibiting the “spread of corruption” which can be used to imprison lesbian, gay, bisexual, same-sex practicing and transgender individuals and human rights defenders. It also includes any law that prohibits or criminalizes the expression of gender identity or expression, including through dress, speech or mannerisms. All such laws should be repealed or amended to put an end to imprisonment, punishments amounting to torture or the death penalty on account of their sexual orientation or freely and mutually agreed sexual activities. Anyone held solely on account of such activities or orientation should be released immediately and unconditionally.
     
  • take all necessary legislative, administrative and other measures to eliminate and prohibit discrimination on the basis of sexual orientation, including with respect to access to employment, housing, education and health care, and to ensure that individuals of different sexual orientation or gender identity are protected from violence and social exclusion within the community.

IRQO: Humanity Denied: The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Iran

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