Shortly after the U.S. invasion of Iraq, reports show that violence against women began to proliferate. More than 400 Iraqi women were abducted and raped within the first four months of U.S. occupation. Reports now show that the rates of many forms of violence against women skyrocketed during the period when the U.S. exercised de jure or de facto authority and control in Iraq. Yet rather than taking firm and concrete action to protect women against such egregious violations of their rights to life and personal security given the U.S.’s role in dismantling the country’s social fabric and its position as the occupying power, U.S. authorities often looked the other way as they sought to make strategic alliances with extremist and reactionary politico-religious forces. These policies and practices helped to foster a climate of gender-based persecution, i.e. the severe deprivation of women’s fundamental rights on the basis of their gender as that offense is defined in Article 7 of the Rome Statute of the International Criminal Court.
Likewise, in Afghanistan, human rights organizations, women’s organizations and news outlets have reported numerous acts of sexual violence against women by not only anti-government forces – which proliferated in the country due to the U.S.’s military offensive – but also U.S.-supported Afghan troops and police. The perpetrators are rarely punished, particularly when they have connections with the U.S.-installed Afghan government. Amnesty International interviewed and documented cases of sexual violence perpetrated by government officials and armed groups supported by the central government – actors rarely held accountable for their crimes. In focus groups with Amnesty International, women provided direct testimonies of rape and abduction by armed groups and linked it to the power they wield and the widespread circulation of arms. Some women have committed or attempted to commit suicide as a result of sexual assaults. Yet the violence perpetrated by actors like the Afghan police does not prevent the U.S. from recruiting these same actors to support its military offensive. Moreover, even in the absence of explicit support from the U.S. government, many perpetrators are protected by leaders within the Afghan government. For example, President Karzai was reported to have pardoned three politically well-connected men convicted of gang-raping a woman at bayonet-point.
In Iraq, as early as 2006, militants known to have strong ties with the U.S.-backed government were carrying out a campaign against men and children suspected of being homosexual or who had been forced into prostitution. At the beginning of 2009, reports emerged of hundreds of men murdered because they were suspected of being gay. In 2012, a new wave of killing was condemned by leading Iraqi civil society organizations, which reported the torture and killing of dozens of men suspected to be homosexual in different cities in Iraq. Police have done very little to investigate and stop these murders; on the contrary, there is evidence of their complicity in targeting sexual minorities. Nor did the U.S. military work to protect women and sexual minorities from these attacks when it wielded effective authority, control and influence.
The wars have also left women and children vulnerable to sex trafficking. According to the Organization of Women’s Freedom in Iraq (OWFI), “many young war widows and orphans…without means of supporting themselves, have been sexually exploited and trafficked.” OWFI has documented more than 70 cases of trafficking and forced prostitution, of which 65% were of minors, in 2008, and estimates that hundreds of women and girls are sold into sexual slavery each year, sometimes by families made destitute by the war. In one instance, a criminal ring reportedly in Diyala trafficked 128 women to Saudi Arabia via Mosul in 2007. As members of the criminal ring allegedly included two members of the Diyala Governorate Council, one security officer, and three policemen, the case was closed with no charges filed.
Similarly, the U.S.-led conflict in Afghanistan has exacerbated the country’s poverty and security problems, driving many girls and women into the sex trade. Young Afghan boys are similarly sexually exploited and trafficked. According to the U.S. government and international organizations, Afghanistan became “a source, transit, and destination country for men, women, and children subjected to forced labor and sex trafficking.” Notably, U.S. government contractors have been implicated in sex trafficking in Afghanistan. As in Iraq, very few of the perpetrators of trafficking in Afghanistan are prosecuted, as the majority of those responsible for trafficking (more than 32%) reportedly wield significant political power.
Victims of sex trafficking in Iraq and Afghanistan receive little protection by the government, as most victims are referred to the care of civil society and non-governmental organizations. As of 2010, only one NGO-managed shelter existed in Kabul specifically for women victims of trafficking. In Iraq, OWFI has been threatened with being stripped of its NGO status by the U.S.-created and supported NGO Assistance Office in Iraq for creating shelters for women victims of sex trafficking and other forms of abuse.
U.S.-Created and Supported Legal System in Iraq Enabling
Gender-based Violence and Persecution
In addition to failing to protect women in Iraq from the proliferation of violence directed against them while the U.S. exercised full de jure authority and control and later de facto control as an ongoing occupying force, the U.S. was intimately involved in the process of drafting Iraq’s new constitution and transitioning a new legal framework.
Photo courtesy of OWFI
Through this process, the U.S. severely undermined the status and rights of women to life and personal security as well as equality and non-discrimination. Despite the U.S. rhetoric that the war and occupation would improve the rights of women, not only did U.S. authorities make no attempts to amend laws that immunized perpetrators of gender-based violence, they helped bring about a constitutional paradigm that immeasurably worsened women’s status and hopes for political participation in the new era.
The Coalition Provisional Authority let stand provisions in the Iraqi Penal Code and Personal Status law that immunized perpetrators of gender-based violence in stark contrast to the U.S.’s active reform or repeal of much of Saddam Hussein’s legislation aimed at protecting Iraq’s centralized economy. As a result of the U.S. authorities’ refusal to prioritize the rights to equality, life and personal security of women, the Iraqi Penal Code still provides immunity for acts of violence committed by those “exercising a legal right,” which includes a husband’s punishment of his wife within the limits prescribed by law or custom. As a result of this legal endorsement, men are rarely arrested or prosecuted for violence against female relatives. Indeed, these provisions have helped create conditions in which the rate of honor killings is increasing.
At the same time, U.S. authorities were actively and directly involved in brokering a new constitution that further erodes and undermines women’s status in Iraq. In spite of protests by Iraqi women’s groups, the new constitution established an official state religion to which all future laws must conform, incorporated religious doctrine as a source of law, and allows citizens to choose between the civil Personal Status Code and religious law for family matters. This has led to many women being forced to submit to unaccountable religious courts by their husbands and family members. These provisions were insisted upon by the U.S.’s closest allies in Iraq, who belonged to reactionary politico-religious forces. The constellation of these legal provisions and endorsement by the U.S. were serious setbacks for women and have served to create a climate in which many forms of violence against and persecution of women, along with impunity for such crimes, have dramatically increased.
 See, e.g., generally Al-Ali and Pratt, supra note 15; Susskind, supra note 12.
 More than 400 Iraqi Women Kidnapped, Raped in Post-war Chaos, Agence France-Presse, Aug. 24, 2003, available at http://reliefweb.int/report/iraq/more-400-iraqi-women-kidnapped-raped-post-war-chaos-watchdog.
 See, e.g., generally Al-Ali and Pratt, supra note 15.
 See generally Susskind, supra note 12.
 “Persecution” is defined at Article 7(2) of the Rome Statute of the International Criminal Court as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Article 7(1) of the Rome Statute provides that gender is a prohibited basis of persecution.
 See, e.g., Statement by Michelle Bachelet Under-Secretary-General and Executive Director of UN Women, UN Women Condemns Violence Against Afghan Women and Calls for Justice, Jul. 13, 2012, available at http://www.unwomen.org/2012/07/un-women-condemns-violence-against-afghan-women-and-calls-for-justice/ (condemnation of Afghan Government following the case of rape and mutilation of a young woman by U.S trained local Afghan police). See also Human Rights Watch, Killing You is A Very Easy Thing For Us: Human Rights Abuses in Southeast Afghanistan, Jul. 2003, at 24-30, available at http://www.hrw.org/sites/default/files/reports/afghanistan0703.pdf (discussing cases of rape by government military and police forces of women and children); M.H. Hasrat and Alexandra Pfefferle, Violence Against Women In Afghanistan, Afghanistan Independent Human Rights Commission (AIHRC), Biannual Report 1391 at 23, available at http://www.aihrc.org.af/media/files/VAW_Final%20Draft-20.12.pdf.
 Amnesty International, Afghanistan: Women Still Under Attack – a Systematic Failure to Protect, May 2005, available at http://www.amnesty.org/en/library/asset/ASA11/007/2005/en/21078ed1-d4e7-11dd-8a23-d58a49c0d652/asa110072005en.pdf.
 Id. at 21.
 M.H. Hasrat and Alexandra Pfefferle, supra note 447, at 23.
 See e.g., Gareth Porter, Child Rapist Police Return Behind U.S., UK Troops, Interpress, Jul. 29, 2009, available at http://www.ipsnews.net/2009/07/afghanistan-child-rapist-police-return-behind-us-uk-troops/.
 Kate Clark, Afghan President Pardons Men Convicted of Bayonet Gang Rape, The Independent, Aug. 24 2008, available at http://www.independent.co.uk/news/world/asia/afghan-president-pardons-men-convicted-of-bayonet-gang-rape-907663.html.
 Susskind, supra note 12.
 Jennifer Copestake, Gays flee Iraq as Shia death squads find a new target: Evidence shows increase in number of executions as homosexuals plead for asylum in Britain, The Guardian, Aug. 5, 2006, available at http://www.guardian.co.uk/world/2006/aug/06/gayrights.iraq.
 Human Rights Watch, They Want Us Exterminated: Murder, Torture, Sexual Orientation and Gender in Iraq, Aug. 2009, at 2, available at http://www.hrw.org/sites/default/files/reports/iraq0809web.pdf.
 See Press Release, Organization of Women’s Freedom In Iraq, Campaign of Iraqi Gay Killings by Smashing Skulls with Concrete Blocks, Mar. 2, 2012, available at http://equalityiniraq.com/press-release/150-campaign-of-iraqi-gay-killings-by-smashing-skulls-with-concrete-blocks.
 Human Rights Watch, They Want Us Exterminated, supra note 455, at 4.
 See Susskind, supra note 12.
 Organization of Women’s Freedom in Iraq, Newsletter, Nov. 2013 (on file with CCR).
 Organization of Women’s Freedom in Iraq, Prostitution and Trafficking in Iraq (2010), at 10, available at http://equalityiniraq.com/images/stories/pdf/prostitutionandtrafficking-OWFIreport.pdf.
 Id. at 18-20. See also Human Rights Watch, At a Crossroads: Human Rights in Iraq Eight Years After the US- Led invasion, Feb. 2011, at 17, available at https://www.cimicweb.org/cmo/ComplexCoverage/Documents/Iraq/Human%20rights%20after%20invasion.pdf.
 Organization of Women’s Freedom in Iraq, Prostitution and Trafficking in Iraq, supra note 460, at 18-20. See also Human Rights Watch, At a Crossroads, supra note 461, at 17.
 On poverty being a major cause for sex trafficking, see, Afghanistan Independent Human Rights Commission, Summary Report on Investigation of Causes and Factors of Trafficking in Women and Children, Jul. 2011, at 3, available at http://reliefweb.int/sites/reliefweb.int/files/resources/Full_report_156.pdf. On the dire economic conditions in Afghanistan caused by the current policies, see UN News Center, Human Rights Abuses Exacerbating Poverty in Afghanistan UN Report Finds, Mar. 30, 2010, available at http://www.un.org/apps/news/story.asp?NewsID=34239&Cr=#.UUZh-BkQa-Q.
 See International Organization for Migration, Trafficking in Persons in Afghanistan: Field Survey Report (2008), available at http://www.iom.int/jahia/webdav/shared/shared/mainsite/activities/countries/docs/afghanistan/iom_report_trafficking_afghanistan.pdf. See also Afghanistan Independent Human Rights Commission, supra note 463.
 U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, Trafficking in Persons Report: Afghanistan (2012), available at http://www.state.gov/j/tip/rls/tiprpt/2012/192366.htm. See also e.g., International Organization for Migration, supra note 464.
 See, e.g., Former ArmorGroup North America Director of Operations Files False Claims Act Whistleblower, Reuters, Sept. 10, 2009, available at http://www.reuters.com/article/2009/09/10/idUS129866+10-Sep-2009+PRN20090910. See also Charles Keyes, Whistleblower sues Afghanistan Security Contractor, CNN International, Sept. 11 2009, available at http://edition.cnn.com/2009/WORLD/asiapcf/09/10/afghanistan.embassy.whistleblower/.
 See Afghanistan Independent Human Rights Commission, supra note 463, at 5.
 See U.S. Department of State, Trafficking in Persons Report: Afghanistan, Office to Monitor and Combat Trafficking in Persons (2010), available at http://www.state.gov/j/tip/rls/tiprpt/2010/142759.htm.
 Interview with Yanar Mohammed, President of the Organization of Women’s Freedom in Iraq, Feb. 1, 2013.
 Susskind, supra note 12.
 Aaron D. Pina, Congressional Research Service, Report for Congress, Women in Iraq: Background and issues for U.S. Policy, Jun. 23 2005, available at http://fpc.state.gov/documents/organization/50258.pdf. Although the report states that the Penal Code and the Personal Status Law are an obstacle to gender equality in Iraq, it does not mention any initiative by U.S. government to reform these discriminatory legislations. See also Susskind, supra note 12.
 See Iraqi Penal Code ¶ 41(1) available at http://law.case.edu/saddamtrial/documents/Iraqi_Penal_Code_1969.pdf.
 Al-Ali and Pratt, supra note 15.
 See Susskind, supra note 12.
 See e.g, Edward Wong, Iraqi Constitution May Curb Women’s Rights, New York Times, Jul. 20, 2005, available at http://www.nytimes.com/2005/07/20/international/middleeast/20women.html?pagewanted=all&_r=0 (explaining how the draft constitution was already viewed as regressive to women’s rights in Iraq and protested against by many feminist groups before it came in force). See also Nathan J. Brown, Iraq’s Constitutional Process Plunges Ahead, Carnegie Endowment for International Peace, Democracy and Rule of Law, Policy Outlook (2005), at 9, 11, available at http://carnegieendowment.org/files/PO19Brown.pdf; Susskind, supra note 12.
 Iraqi Constitution, translated to English, available at http://www.wipo.int/wipolex/en/text.jsp?file_id=230000
 Interview with Yanar Mohammed, supra note 469.
 Id.; see also Susskind, supra note 12; Al-Ali and Pratt, supra note 15.