JURIST Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that Iraq's handling of the violence perpetrated against an unpopular group of people may ultimately determine the type of state Iraq will evolve into over the course of the coming years...
here has been an apparent disturbing rise in the killing of youths on Baghdad streets, in some cases in rather brutal ways and in a manner that presents to Iraq a rather significant legal and constitutional challenge concerning its commitment to an international human rights regime.
The victims of these alleged attacks are known, literally, as "emos," a term which appears to be taken from the English word "emotional," often translated in Arabic media as "romantic" or "sensitive." They are described as wearing extremely tight pants, accessorizing excessively, with long hair stylishly prepared, and engaged in behavior described as "odd" and "deviant" relative to ordinary Iraqis. Their greatest critics describe them as cursed because of their effeminate mannerisms. Though there are often other bizarre rumors that abound respecting emos, including devil worship and the mutual sucking of blood from the wrists of compatriots, it is very difficult to read these descriptions and not come to the conclusion that much of this hatred of emos is directed at homosexuals, or at least those who appear to reflect what are thought to be homosexual tendencies. That connection, however, is not explicitly made in the local press.
For some period of time, the emos were the subject of significant criticism from more conservative religious elements, as well as, reportedly, the police. Certainly Friday sermons seemed to refer to them as presenting particular threats to Iraq's public morals. There have also been various reports of police roundups of those dressed in emo-like fashion near universities and other areas where youths gather in a manner that has spread significant fear among college students. Students even report to the media their belief that some of their fellow students are spreading information to the authorities respecting who might have emo tendencies, thereby justifying their arrest.
Then the alleged killings began. Throughout Baghdad and Kadhmiya, one of Shi'a Islam's holy sites, youths alleged to be emos were said to be killed by targeted assassination, burnings and even by the dropping of cinder blocks on their heads after being forcibly laid on the sidewalk. Some sources report that over a dozen people were killed in this particularly brutal manner. By the beginning of March, the number of deaths had been reported to reach as high as 100 people. For obvious reasons, young men no longer wear tight jeans on public streets, or even put gel in their hair.
The Iraqi Ministry of Interior, within days of the time that the outbreak of killings earned widespread media attention, denied that anyone has been killed on account of their being an emo and that this has been nothing more than irresponsible rumor mongering. In Iraq, a state with an extremely high murder rate where accurate news is hard to come by, one never knows. It is plausible that some young men were killed for independent reasons that are all too common in Baghdad these days (debts unpaid, family disputes or merely an evening of drinking gone awry) and the balance of the reports are exaggerations and rumors as the Interior Ministry suggests. The fact that mainstream media reports suggest that names of targeted emos continue to be circulating around Sadr City, where they appear to be under particular threat, makes that claim increasingly implausible. Moreover, a swift denial of this sort before a complete investigation could possibly be had does seem to reflect a studied decision not to deal with something that could prove to be a serious problem.
Fortunately, the more pressing legal problem, that of possible mass killings, has resulted in a fairly consensual expression of disapproval among all factions and outrage among most. The Sadrists, who are the greatest critics of the emos and those accused of having a hand in the recent spate of alleged killings, deny they had anything to do with them and indicate that such killings are unacceptable (even if it could be cast in some doubt, the official Sadrist denial is noteworthy, as it legitimizes state activity to bring the murderers to justice). Grand Ayatollah Ali al-Sistani's representatives have described such killings as acts of terrorism. The Shi'i jurist Muhammad Yacoubi, after casting doubt that any emos have been killed and suggesting this has all been part of a plot to discredit Islam, did, to his credit, issue a fatwa, an opinion in Islamic law, that to engage in such an extralegal killing would be absolutely prohibited. Parliament has called for a full investigation into the murders.
In the end, nobody of importance actually claims that anyone other than the state decides what the law is and how to enforce it. Sunnis have seen the bitter results of that type of extralegal assumption of authority when al Qaeda assumed control of Falluja, and the Shi'a saw it when the Sadrists assumed control of Basra. It was Prime Minister Nouri al-Maliki's restoration of government control in these areas, and the concomitant renaming of his movement from the Islamic Call to the Coalition for a Nation of Law, that led to a swift rise in his popularity, making his reelection possible. The principle of state supremacy over all law, including Islamic law, is therefore hardly challenged.
The legal problem that is likely to prove itself more difficult to resolve is whether the state is committed to doing more than preventing the emos from getting killed by extremist gangs; to protect, that is, the rights of the emos to conduct themselves as they will without state interference. There is a fair amount of constitutional authority on which one may rely that would naturally extend to emos, including a right to personal privacy, a right to live in freedom and dignity, freedom of expression, freedom of association and freedom of conscience and belief. It is hard to imagine mass arrests of human beings, effectively because they dress and act too effeminately, is consonant with this broad panoply of rights that the Iraqi Constitution [PDF] guarantees. This is a point that has been made by activists and parliamentarians alike recently. Even the government has seemed to accept this position, with government Spokesman Ali al-Dabbagh stating that the police have not interfered with the lifestyle choices of the emos, that suggestions to the contrary are "simply lies" and that the emos are engaged in the exercise of "personal freedom."
However, there are those who clearly believe that the state harassment of the emos is justified, necessary and perfectly consonant with the constitutional order even if their being killed by roving gangs is not. The emos are described as engaged in "strange" conduct that threatens to destroy society, and that suppressing them also, for unexplained reasons, fulfills the state's anti-drug policies. Others compare them to those suffering from a disease, and in need of the state's intervention to effect a cure. The most extreme reaction has been from the Sadrists, who indicate that it would be acceptable for the state, using state processes of criminal enforcement, to jail or flog the emos for their "cursed" and "effeminate" behavior even if it is not acceptable for gangs to kill them in the street. Even Dabbagh qualified his references to personal freedom by emphasizing that the necessity of respect for varying social customs "so long as there is no law prohibiting them."
The legal basis for sanctioning limitations on the freedom of the emos is based largely on the fact that many, though not all, of the constitutional freedoms described above and upon which the emos might rely are limited by a public morals exception. Hence, one's right to personal privacy, freedom of expression and freedom of association are all limited to the extent that they violate public morals, and the emos are understood to be engaged in such violations. Lying behind much of this, in many cases explicitly, have been references to Islam as being not only a source of public morals, but also the official religion of the state and a fundamental source of law that no legislation may be enacted that conflicts with its settled rulings. Thus, while no gangs may enforce law on their own, the state may constitutionally enact law that restricts the conduct of the emos because of its offensiveness to public morals, the theory runs.
The irony of this conclusion is that for the most part, there has been very little appetite to use the Constitution's references to Islam to involve morals policing of this sort. Indeed, when used with respect to state activities, actual or proposed, the references to Islam among clerics and politicians alike have been generally salutary, even if not always practiced as preached. Islamic law has been most often invoked in favor of good governance, anti-corruption and an independent judiciary, though admittedly at such a high level of abstraction that the actual connection to Islamic doctrine is somewhat nebulous.
Thus, by and large, to the extent that clerics involve themselves in legal matters and invoke Islamic law to do so, the areas of concern are of the sort that are hardly controversial among the lay public, religious and secular alike. The Friday sermon given last week by Sistani's son-in-law, Ahmed al-Safi, in the Shi'a holy city of Karbala, objected to the state's failure to enforce the laws against the fabrication of higher education degrees. The previous week, he objected to corruption in parliament respecting appropriations for armored cars. These sorts of activities were understood to violate Islamic values as set forth in the Constitution, though of course they probably violate liberal values as well.
Meanwhile, throughout Iraq and the states that have been transformed as a result of the Arab Spring, mainstream Islamist groups go out of their way to distinguish themselves, quite explicitly, from the types of morals policing that earlier Islamist regimes, from Saudi Arabia to Iran, openly embrace. Those regimes are characterized by their roving bands of men out to determine whether or not people are dressed properly, accompanied by appropriate relatives and the like. Islamist groups in Iraq and Egypt alike insist that they are not interested in theocratic governance of this sort and they have no intention of enacting a headscarf requirement on women, for example, let alone using the police to enforce it or other forms of public morals. They claim to be articulating a more moderate and tolerant version of Islam. This has been among the most encouraging realities of the nascent Arab democracies, which at least to date are not characterized by the aggressive morals policing of states that fell under Islamic rule decades earlier.
Yet to show tolerance to women not wearing a headscarf is one thing, to grant constitutional recognition to young men who appear to portray tendencies described as homosexual is quite another in the context of these societies. Homosexuality is far less tolerated than liberal dress on the part of non-Muslim or secular Muslim women. This might very well be a line that Islamist groups in Iraq and elsewhere are unwilling to cross, an area where they will continue to use the state to harass and persecute private citizens for public engagement in un-Islamic activity on the basis of public morals exceptions that underline many of the constitutional freedoms set forth in the Iraqi Constitution. Certainly the Sadrists have indicated this is their agenda, with suggestions that the emos be flogged for their cursed conduct. Less extreme Islamist movements, those of the mainstream among Shi'a and Sunni alike, shy away from such incendiary rhetoric, denounce the violence perpetrated against the emos but still call for the "problem" of the emos to be dealt with more peacefully, in some cases through giving advice and guidance. Precisely what this means, and whether it involves active state intervention and persecution, is a matter to be seen. It may well help determine the type of state that Iraq evolves into over the course of the coming years, however.
Haider Ala Hamoudi is an Assistant Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament, responsible for developing amendments to the Iraq Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He is currently preparing a book on the drafting and subsequent evolution of the Iraqi Constitution to be published with the University of Chicago Press. He maintains a blog on Islamic Law
Suggested citation: Haider Ala Hamoudi, Human Rights and Respecting Personal Freedoms in Iraq, JURIST - Forum, Mar. 14, 2012, http://jurist.org/forum/2012/03/haider-hamoudi-iraq-emos.php.
This article was prepared for publication by Michael Kalis, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org