Even the children of Derna were witnesses to an Islamic State execution in a mosque courtyard last month, of three young men charged with homosexual acts.  Lined up next to one another, each man was forced to kneel in a plastic tub and then shot in the back of the head while scores of people looked on.

Even the children of Derna were witnesses to an Islamic State execution in a mosque courtyard last month, of three young men charged with homosexual acts.  Lined up next to one another, each man was forced to kneel in a plastic tub and then shot in the back of the head while scores of people looked on.

No media was present at the execution. According to a man who wished not to be identified, “IS in Derna does not allow journalists to work. Activists, who have criticized the group’s behavior, have been prosecuted and threatened over social networks and some have been killed, while the others have  managed to flee.”

The only source of information in Derna comes from IS, via their radio station and website. There is no news reporter of any media organization and the reported news from Derna is often incomplete, since the victims’ parents or relatives refuse to give interviews for fear of IS militants.

Just a few days before the execution, a person codenamed Abu Al-Bara posted a statement on Derna Local Radio’s Facebook page reading, “In the coming days, Derna residents will hear happy news about enforcing punishment against people who have committed serious obscenities.”

On the day after the executions, ISIS media office posted pictures on its website captioned: “Muslim masses witness the enforcement of punishment against three homosexuals.”

 A source from Derna said the families of the three executed young men (named Naseeb Al-Jazwi, Faraj Al-Shewi and Saad al Fahakhri) did not set up condolence meetings for their children since they were charged with committing a disgraceful and reprehensible sin and most of those who attended the execution were close to the IS leaders and their children. No one dared to speak about the incident and its relevant details.

Controversy and condemnation

Many activists denounced the incident which was considered the first death sentence against homosexuals in the history of modern Libya. “What ISIS has done is a heinous and unspeakable crime against humanity,” said activist Mohammed Khalifa.

Libya’s representative to the International Criminal Court (ICC) and former Minister of Justice, Mohamed Allagui believes that any court outside state legitimacy is invalid although he admits that the issue is sensitive and “difficult to discuss within a religiously conservative society, since it violates the Libyan Islamic teachings and moral values.”

A journalist from Derna had a different opinion. “The punishment in Islamic Sharia law would be to throw the perpetrator from the top of the highest mountain peak,” he said and cited an incident that took place a month ago where a young man was sentenced to death by being thrown from Ras al-Hilal mountain. “I agree to the enforcement of God’s Sharia, but I have a problem with those who claim that they are a state and a caliphate that seeks to enforce the divine law without the people’s allegiance. IS can only be described as Kharijites,” he said. (The term describes Muslims who initially supported the authority of Ali ibn Abi Talib —  son-in-law and cousin of the Islamic prophet Muhammad — then later rejected his leadership).

All of Islam deems homosexuality a sin

Muslim scholars are unanimous that homosexuality is a grave sin. Sunni religious scholars, however, disagree about its punishment. According to the Shaafai school of thought, the punishment is similar to that of adultery while Maalikis and Hanbali ideologies believe that perpetrators must be stoned to death.

Imam Abu Hanifa, on the other hand, believes that punishment should only include whipping whereas other schools believe that homosexuals should be burned or thrown off the highest mountain top. However, they all agree that four witnesses must have seen the act of homosexuality to enforce the punishment.

Currently, most of Middle East and Islamic countries criminalize homosexuality and punish same sex perpetrators by imprisonment, payment of fines or enforcement of the death penalty.

Legal challenges

Homosexuals in Libya face legal challenges. The Libyan Criminal Code prohibits all sexual activities outside marriage and punishes homosexuality among adult males by imprisonment from three to five years.

This law was promulgated after the military coup led by Gaddafi, where the Revolutionary Command Council formed a committee to review acts of violation of Islamic law. In the early 1970s, laws criminalized adultery, brothels, alcohol, usury and other issues that were not regarded as criminal acts before.

 “Before the 1969 coup, sexual contacts between two persons (whether between a male and a female, two males or two females) outside marriage was not considered a crime if it was by mutual consent,” said lawyer Wael Ben Ismail.  “In the 1970s, the laws changed and sexual contacts outside marriage were deemed criminal acts even if they were of mutual consent.”

Two articles in Libya’s Penal Code are used to incriminate homosexuals: Article 407 of 1953, amended in 1973, stipulates: “Whoever has sexual contact with another person with his/her consent shall be punished along with his/her partner by a term of imprisonment not exceeding five years.”

Article 408 of the Penal Code states: “Any sexual encounter between two persons by consent shall be punished by the imprisonment of both.”

Activist Mohammed Jumaa believes that the punishment is unfair as it is not reasonable that a person spends five years in prison for a mere exercise of sexual inclination even if the sexual act takes place behind closed doors.

Libya’s ICC representative Mohamed Allagui said, “The Libyan Penal Code defined the sexual intercourse which according to sociologists occurs indoors in places including soldier camps, student rooms and the like. It also classified the act under the criminal provisions. However, proving its occurrence is possible through any type of evidence verification methods.”

“In 2010, the police arrested a young homosexual named Hussein from Az-Zawiya city. During his trial, the prosecutor publically read the forensic medical report and said due to the frequent exercise of homosexual acts, the accused could not control his stools,” recalled Allagui. “I was present at that trial and I was shocked. I do not know to this day the fate of that young man. I did not understand the purpose of reading the report in that way. It was a scene I could never forget.”

International human rights organizations did not report any cases of imprisonment of homosexuals’ under Gaddafi, due to state of secrecy maintained by that regime.  The difficulty of obtaining any information from the court archives and the unwillingness of the convicted persons, families or the convicted persons themselves to disclose such information was immense, as disclosure would expose the families and homosexuality is a taboo.

Human Rights Watch intervened with the Libyan government in November 2012 when the deterrence force in Tripoli arrested a group of young people on charges of homosexuality. They were released one week after their detention, torture, and shaving of their heads. They were able to call their parents and sign a pledge to follow a decent and moral life, according to a statement published by the organization.

A difficult situation

Twenty-year-old Adam Annan, a gay Libyan man who lived in London and moved to Libya after the 2011 revolution, said: “My parents know I am gay and they are not happy with it. We are constantly being persecuted by society. Homosexuals in Libya are subjected to the most horrendous and inhumane treatment. Unfortunately, advocacy of their rights at present is viewed by many as abnormal.”

Annan has a gay friend who was imprisoned and severely beaten after being accused of promoting prostitution on account of his homosexuality and was dismissed from his job. At present, this present cannot talk to any media outlet because homosexuality is such a strong taboo.

 “Several gay friends practice prayer and fasting, but the majority of them are dissatisfied with society, customs, traditions and religion,” said one gay man who spoke anonymously to Correspondents. “We cannot tell our stories and are disregarded by the international organizations.”

Is homosexuality a disease?

Over the past decades, several organizations and international medical associations have no longer considered homosexuality ‘a sexual deviancy’. In 1990, World Health Organization (WHO) officially removed ‘Homosexuality’ from the global Statistical Classification of Diseases and Related Health Problems while the American Psychological Association (APA) in 1973 removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders and canceled its definition as a disorder or a sexual abnormality.

Even Libya’s former health minister, Fatima Hamroush said: “It is scientifically proven that homosexuality is not a psychological illness or a punishable offense, but is an inclination that is identical with normal mental health and social orientation,” she said.  “It has a direct relationship with the individual’s genetic and biological composition, hormones and environmental nature, which means that it is directly related to nature and nurture.”

Nevertheless, she says: “We as Muslims are against this tendency. Consequently, we should not accept it from the religious point of view. This criminalization stems from our religious conviction and Muslim upbringing, considering that each environment, faith, and community have their own different outlooks. Their laws originate from and are directly linked to these variables.”

In Libya, psychiatrists view the situation differently. According to Saleh Al-Huweij, psychological health consultant and head of Al-Safa Mental Health Center in Tripoli: “Homosexuality is considered a psychological disorder that needs to be psychologically taken care of. It is has nothing to do with any hormonal or biological factors. It is attributed to educational and behavioral causes originating in early childhood.” He also stated that he has treated several such cases including males and females and that the treated cases “have improved.”

UN resolutions protect homosexuals

The UN General Assembly debated the issue of prohibiting the discrimination of homosexuals for the first time in 2003. Libya was one of the five countries that opposed the draft UN resolution on that matter, which was not passed at the time.

In June 2011, when Libya’s seat fell vacant due to the United Nation’s freezing of Libyan representation to punish Gaddafi, the Human Rights Council adopted resolution 17/19 – the first UN resolution on sexual orientation that focused on the principal legal obligations of nations to protect homosexuals against violence, hostility, torture, cruelty and inhumane treatment. It was also concerned with repealing the laws that criminalize homosexuality.

In February 2012, Libya, through its permanent representative, told the UN Human Rights Watch Organization that homosexuals threatened the survival of human race and that Libya would have opposed Human Rights Council’s resolution (17/19) had its membership not been suspended .

Hillel Neuer, Executive Director of the United Nations human rights monitoring agency at the time said, “We were happy that the Gaddafi regime was toppled, but the comments made by the representative of the new Libyan government raised serious questions as to whether the new regime would really work to improve the dark human rights record or seek to satisfy some Islamic militants amid its ranks.”

The adoption of resolution (17/19) paved the way for issuing the first UN official report on this issue. The report was prepared by the High Commissioner for Human Rights and was adopted in September 2014. The Human Rights Council passed a new resolution No. (27/32) in which it expressed once again its deep concern over human rights violations and demanded the High Commissioner to prepare an updated report in order to exchange practices and means of eliminating violence and discrimination in implementation of enforced international law and international norms on human rights for onward referral to the 29th session of Human Rights Council.

But activist Mohammed Khalifa is not optimistic about the situation of human rights especially in regards to homosexuals in Libya. “Given the state of hypocrisy, duplicity and alleged honesty rampant in the Arab societies including the Libyan society, there is hardly anyone in Libya who adopts such views, ideas and decisions as long as the radical groups still exist and a large category of people consciously and unconsciously apply strict sharia law.”