05 June 2017 :

January 29, 2016

GAY RAID: WHEN AND WHERE THE STATE KILLS

Edited by Hands Off Cain

General framework

In the world, there are 75 UN member states and 3 Territories where sexual acts between people of the same sex are still illegal (see Annex).

From a geographical point of view, with 34 states, Africa is the continent where the criminalization is wider, followed by Asia with 25, Latin America and the Caribbean with 11 and Oceania with 8.

From a religious point of view, many are convinced that the problem mainly concerns countries with a Muslim majority, which are "only" 38, while the Christian countries are 33, Buddhists 3, Hindus 2, and 2 others that follow local beliefs.

Criminalization of sexual acts among people of the same sex is brought to the extreme consequences of capital punishment in at least 12 UN member states, all of them with Muslim majority, where it is provided by ordinary law or applied under Sharia law, which in some cases acts as a criminal code: Afghanistan, Saudi Arabia, Brunei Darussalam, Iran, Iraq, Mauritania, Nigeria, Pakistan, Qatar, Somalia, Sudan and Yemen. In the United Arab Emirates, lawyers and other experts do not agree on whether federal law provides for the death penalty for homosexual gay sex or only in rape cases.

For the sake of accuracy, the death penalty is practiced "legally" (under ordinary law and/or Sharia law) in only 5 of the 12 countries mentioned above: Saudi Arabia, Iran, Mauritania, Sudan and Yemen.

In a sixth state, Iraq, where it is not mentioned in the ordinary code, there are judges and militias throughout the country who condemn to death for sexual intercourse between people of the same sex. In addition, although not foreseen at federal level, in 12 northern states of Nigeria and in some autonomous regions of southern Somalia, it is officially applied. Finally, in Brunei Darussalam, which introduced the new Penal Code of Sharia in 2013, the death penalty for sexual acts between people of the same sex should enter into force in 2016, although it is likely that it will not be implemented, as it was  never practiced in Pakistan, Afghanistan and Qatar, where it is also provided by law (Ordinary and/or Sharia).

On the other hand, the dozens of killings decided by self-proclaimed Sharia courts and carried out by the Islamic State (IS) in Syria and Iraq should be classified as "extrajudicial executions".

Sharia law

Sharia Islamic Law has four levels of sources. The primary source is the Koran (divine revelation to Prophet Muhammad). The second is the Hadith, the collection of the Prophet's actions. The third source is the Qiyas, the process of analogical reasoning based on the Koran and the Hadith. Finally, there is Ijma, the general opinion among scholars.

Strictly speaking, Sharia law does not have a distinct corpus of "criminal law". Islamic criminal law is the criminal law in accordance with Sharia law.

Unlike other legal systems, where crimes are generally considered violations of state rights, Sharia divides offenses into four different categories depending on the nature of the violated right.

Hudud, that means "limits", is the most serious category and includes crimes foreseen by the Koran (so-called "statements of Allah"): drinking alcohol, theft, adultery, apostasy (including blasphemy), armed robbery and rebellion. Except for the consumption of alcohol, the penalties for all Hudud offenses are specified in the Qur'an or in the Hadith: stoning, amputation and flogging.

The second category is that of Qisas crimes, involving persons. This category includes homicide and injury offenses, which are treated as a private dispute, and responsibility for criminal prosecution is left with the victim or his relatives. The punishment for these crimes is a payment of the same nature (Qisas) according to the principle of the eye for an eye, or compensation (diya), often translated as "blood money".

Thirdly, the Siyasah category covers offenses that are primarily against the state and public order. The sovereign or the state can establish the offense of crime and the related sanctions, but they must conform to the principles of Sharia.

Finally, the Tazir category includes any offense that does not fall into Hudud or Qisas ones, and therefore does it does not have a specified punishment in the Qur'an. Homosexuality falls within this type of "offenses" that can be punished according to the discretion of the judge. In the Sharia system, the death penalty is only mandatory for a number of Hudud crimes.

The situation Country by Country

Saudi Arabia

It is the Islamic country that applies Islamic law in the most rigid way. The death penalty is prescribed for sodomy and homosexuality. A married Muslim practicing sodomy or a non-Muslim who practices it with a Muslim can be stoned to death.

On December 22, 2014, a Saudi man, Suleiman bin Abdullah, was beheaded in Buraidah for kidnapping a child. Allegedly, he tied him and then he stained himself with the "sin of homosexuality," the Interior Ministry said in a statement.

Iran

There have been some changes made in the new Islamic Criminal Code approved in its latest version by the Guardians' Council in April 2013. The term "homosexual" is presented in the new law as a fact of criminal relevance also for relations between men, while before It was only related to women. In any case, sexual intercourse between two individuals of the same sex continues to be subject to punishments ranging from one hundred lashes to execution. According to Article 233 of the new code, the person who played an active role (in sodomy) will be whipped 100 times if sexual intercourse was consensual and he or she was not married. The one who played a passive role would be sentenced to death irrespective of his/her matrimonial status. If the active person is a non-Muslim and the passive person a Muslim, both will be sentenced to death. According to Articles 236-237, homosexual acts (except for sodomy) will be punished with 31-99 lashes (for both men and women). According to Article 238, the homosexual relationship between women in whom there is contact between their sex organs will be punished with 100 whiplashes.

On March 2, 2014, two men, aged between 28 and 30, were hanged in Rasht's central prison on charges of "unlawful acts against Sharia law," announced the Gilan Province's judiciary. The specific allegations against them have not been clarified, but according to human rights activists they were two homosexuals, and they were sentenced to death for the offense of "perversion". The offense of "perversion" is a "cover all" of Sharia law and generally refers to offenses considered "against morality".

Mauritania

In Mauritania, high treason, premeditated murder, torture and acts of terrorism are considered capital crimes, although the latest execution occurred in 1987, against three army officers sentenced to death for an attempted coup d'etat.

Islamic law was introduced in 1980 and the death penalty was extended to apostasy, homosexuality, and rape, but the application of severe punishments based on the Sharia - such as lashing - has been rare since then. Muslim men involved in homosexual sex can be stoned to death, according to a law of 1984. Women have to face jail.

Sudan

The law criminalizing homosexuality has been in force since 1991. The death penalty continues to be imposed on men and women who are "guilty" of homosexuality. Usually, men are executed after the third case, while a woman may be executed after the first case.

Yemen

According to the 1994 Penal Code, married men may be sentenced to death by stoning for homosexual relationships. Unmarried men are at risk of being lashed, or a year of imprisonment. Women have to face up to seven years in jail.

Iraq

The criminal code does not explicitly prohibit homosexual acts, but people have been killed by militias or sentenced to death by judges according to Sharia.

Nigeria

Since 1999, twelve states of northern Nigeria with an Islamic majority have introduced Sharia into their Criminal Codes. Although Nigerian authorities have repeatedly stated that the Federal Constitution does not allow stoning and other punishments foreseen by Sharia, since 2000 many Islamic Nigerians have been sentenced to stoning for "crimes" of sexual nature, such as adultery and homosexuality, but no sentence was executed, since all of them have been annulled by appeal or switched to prison terms.

On January 7, 2014, President Goodluck Jonathan signed the Same Sex Marriage Prohibition Act, approved by the Nigerian Parliament in 2013 and nicknamed the "Jail the Gays" law. The law provides for up to 14 years in prison for gay marriage and imprisonment for up to 10 years for membership or support for gay clubs, societies, and organizations. According to activists, the new law has triggered homophobia and endangers homosexuals in a country where lynching and summary justice are common.

On January 16, 2014, an unemployed 28-year-old artisan, guilty of sodomy, suffered 20 whiplashes in a Sharia court in the city of Bauchi. Mubarak Ibrahim had acknowledged that he had committed an act of sodomy seven years earlier. Judge Nuhu Mohammed had stated that he had not condemned him to stoning because the crime had happened many years before, and the young man had shown "great remorse". In addition to the 20 publicly-imposed whips, Ibrahim was sentenced to a fine of 5.000 naira ($ 30). Ibrahim was part of the group of men arrested by police after Christmas for belonging to a gay club.

On March 6, 2014, four other men were lashed in public in the city of Bauchi for having had homosexual relationships. The men, aged between 20 and 22, were sentenced to 15 strokes of whip and to choose between a fine equivalent to $ 120 or imprisonment for a year. The four were forced to stand face down on the court floor to be lashed.

Somalia

Sexual acts between people of the same sex are punished with jail, but in some autonomous regions of southern Somalia, Islamic courts continue to apply the death penalty according to Sharia.

Afghanistan, Pakistan and Qatar

The Qatar Penal Code of 2004 does not forbid consensual homosexual acts in itself, but the result is the same if we consider that the Sharia law is applied in parallel with the civil code. The Sharia in Qatar applies only to Muslims who may be put to death for extramarital sex, regardless of sexual orientation. The same reasoning applies to Afghanistan and Pakistan.

Brunei Darussalam

On 1 May 2014, the "progressive" implementation of the new Criminal Code of Brunei Sharia began. The new Code, promulgated on October 22, 2013, includes severe Islamic punishments, including stoning for adultery, amputation of thefts, and lashing for breaches ranging from abortion to alcohol consumption.

The Shariah Penal Code Order 2013 provides for the death penalty as a possible sanction - for both Muslims and non-Muslims - for robbery crimes (Article 63), rape (Article 76), adultery and sodomy (Article 82). The death penalty is also prescribed - only for Muslims - in the case of conviction for acts involving extramarital sex (Article 69). Insulting all the verses of the Koran and the Hadith (oral transmission of the said, facts, acts, prophet's behaviors), blasphemy, declaring oneself to be a prophet or non-Muslim, and murder are other offenses for which the death penalty may be applied.

The new Criminal Code also specifies that death sentences for rape, adultery, sodomy, and extramarital sexual relations must be carried out by stoning, punishment that according to the schedule of law implementation should begin to be enacted from 2016.

The anti-gay war of the Islamic State

The more than thirty executions of homosexuality by the self-proclaimed Sharia courts and carried out by the Islamic State (IS) in Syria, Iraq, should be classified as "extrajudicial executions".

In March 2015, IS members beheaded in public four young people aged between 20 and 30, accused of homosexuality in the city of Mosul, Iraq. The jihadists have decapitated them with knives, singing religious slogans and shouting "God is great".

In September 2015, militants of the Islamic State executed nine men and a boy accused of being gay, the Syrian Observatory for Human Rights has announced. The jihadists shooted seven men in Rastan, Central Syria, after charging them of being homosexuals. In addition, two men and one boy were executed in the northern city of Hreitan for the same reason. IS has marked LGBTI people as "the worst of all creatures," claiming at least 30 gay executions.

In October 2015, ISIS militants and supporters stoned two men accused of being homosexuals in Aleppo, Syria.

In November 2015, two more gays were executed by ISIS militants in Iraq. Photos published on social media on November 23 show two blindfolded men being thrown down from the roof of a building in Fallujah with the accusation of "sodomy".

In December 2015, ISIS militants tossed two men from the roof of a building in the town of Palmira, in the Syrian province of Homs, after accusing them of being a "gay couple," local sources reported.

Early in 2016, militants of the Islamic State threw a 15-year-old boy accused of being gay down the roof of a building in Syrian town of Deir ez-Sor. The boy was discovered in the home of an ISIS leader, who was spared the brutal punishment inflicted on the teenager.