IRAQ - Authoritarian excesses in light of the law

Governed by a constitution drafted in 2005, Iraqi society is unique in that it is subject to a mixed legal system, inspired by French and Egyptian civil law , but also by elements of Islamic law and Sharia . In practice, Iraqi law is structured as much by civil and criminal courts and codified commercial laws as by customary and tribal courts, governed by rules not recognized by the official justice system.

Approaching Iraqi society and its government through the lens of law, its application, and its abuses sheds light on complex and real contradictions that have hampered the country's recovery efforts for the past 20 years. In Iraq, the law is a battleground between the state and tribal interests , where corruption and patronage have become preferred tools in sectarian power struggles.

Neglected by Shiite political elites, the police, and militias, it is also a space of resistance for citizens , women, and religious and sexual minorities, forced to constantly fight to preserve their rights rather than demand new ones. In light of the repression of the 2019 Tishreen movement protests, international observers describe Iraqi law as suffering from abuses in its application .

As for its supposed guardians, they fail in their obligation of impartiality and transparency by allowing and participating in forced arrests, summary trials, and campaigns of terror against protesters. Since last year, new laws that threaten to further shrink Iraqi civic space have been under discussion in parliament. Banning spontaneous gatherings, condemning any citizen expressing discontent online, and the marriage of nine-year-old girls are among the threats hanging over civil society that could become legal in the coming years.

Constitution: between colonial influence and Iraqi law, between tribal and customary law

From 1925 to 1958, the constitution of the British Mandate of Mesopotamia served as the legal basis. The Anglo-Iraqi Agreement of 1930 stipulated a British High Commissioner, later replaced by an ambassador with less power. From 1958 to 1968, the First Iraqi Republic was shaped by the ongoing collaboration between colonial and religious authorities: a left- wing, anti-imperialist culture of the 1950s, and principles derived from monarchies and religious, tribal, and sectarian courts , thus enabling Iraq to begin its path to independence .

The colonial authorities, for their part, were able to establish a legal system whose foundations closely resembled the Western model , even including the participation of women in this process, represented by Naziha al-Dulaimi, a communist and leader of the Iraqi Women's League in the 1960s. Alongside this joint effort, which sounded like a step forward, the Shiite Islamist authorities and the Western powers expressed, from this period onward, a desire to undermine progressive citizen forces aspiring to citizenship based on equality within a strong and sovereign state. In the following years, several provisional constitutions were adopted, until the 1990 Gulf War brought the constitutional project to a halt and prevented its promulgation.

Institutional chaos since the fall of the regime in 2003

Having endured the 1990s, the repercussions of the invasion of Kuwait, international sanctions , internal uprisings , the American invasion, and the fall of Saddam Hussein's regime in 2003, Iraqis saw the White House hand over power in their government to members of the Shiite minority . This favored formerly marginalized Kurds and Shiites, while simultaneously removing Ba'ath Party members and Sunnis from the administration.

Following the model of the Lebanese political system, power was restructured and given a new sectarian balance : 50% of positions for Shiites, including the Prime Minister; 25% for Sunnis, including the Speaker of the National Assembly; 20% for Kurds, including the President of the Republic; and 5% for minorities. With the implementation of this system, the notion of Iraqi citizenship was gradually supplanted by a sectarian system , where belonging to a group now took precedence over identification with a political idea or program.

The 2005 Constitution

During the two years following the 2003 US military intervention, Iraqi and American legal experts worked on the political reconstruction of the country, and of course, on the reconstruction of its legal system. The 2004 Transitional Administration Law ( TAL ) of 2004 served as the legal framework and provisional constitution until the adoption of the 2005 constitution, which remains in effect today.

Approved by popular referendum, it established a parliamentary democracy, ensured the separation of powers, and introduced the principle of human rights, with the creation of an independent commission on these issues and another on public integrity. It also recognized the country's ethnic and religious diversity by making Assyrian and Turkmen official languages in which parents have the right to educate their children.

Like Western democracies, the legislative branch is represented by the House of Representatives, whose members are directly elected for four-year terms. The judicial branch comprises a Supreme Court, a High Council of the Judiciary, and a Central Criminal Court. A federal court, an independent Council of State, a court-martial, and police courts are also established for the various constitutional, administrative, and military jurisdictions.

While Article 2-1 of the constitution affirms that Islam is the state religion and an essential foundation of the country's legislation, this same article stipulates that no law contradicting the principles of democracy can be established , not even under Islamic law. Article 35 also guarantees the independence of the judiciary, the right to a defense, and prohibits the use of torture, intimidation, or inhumane treatment. Although this new constitution appears to lay the groundwork for a strong and independent judiciary , the guarantee of freedom of expression and of the press, the right to form political parties, and women's rights are, however, mentioned far too infrequently and often in a very vague manner.

Religious conflict after 2005: the personal status code

In Iraq, the Shiite elite has largely dominated the sphere of power since 2003 and constantly attacks existing legal mechanisms. It ousted members of the Ba'ath Party, who were close to the Iranian authorities and in power during Saddam Hussein's dictatorship. Yet, this Sunni elite, which participated in the dismantling of the state, institutions, and redistribution systems, was the target of the same criticisms leveled by NGOs against the current regime, which they describe as ethno-sectarian, repressive, and sexist .

Inaugural session of the new parliament resulting from the 2022 elections

In parliament, Sunni and Shiite rivalries are expressed through their proposed laws and amendments. A perfect example of this institutionalized sectarian struggle is the Personal Status Code . Adopted in 1959, Law 188 enumerates the rights and duties of Muslim citizens regarding marriage, divorce, child custody, and inheritance. This law, which serves as a reference point for societal conflicts in Iraq, is neither secular nor religious, but rather a blend of specific interpretations of Shiite and Sunni jurisprudence, negotiated by various actors, including Westerners and scholars from both schools of thought. It lies at the intersection of state-building in the colonial and post-colonial eras.

Since September 2024, the Shiite majority has been working towards the adoption of a new amendment that would allow the choice of a specifically Shiite law , certainly aligned with Sharia and Islamic jurisprudence, but whose sectarian code would eliminate state control, weaken the rights of women and children by authorizing temporary marriages outside of courts, and that of girls as young as 9.

Faced with fierce opposition from civil society, proponents of the amendment claim to be opposing agents of the West and secularism. Simultaneously, and with the aim of increasing their community's influence, Sunni members of parliament have been calling since 2018 for an amendment to the general amnesty law , which aims to erase criminal offenses for a certain period to facilitate national reconciliation. This would prevent the conviction of thousands of members of their community for acts of terrorism committed during the war against the Islamic State organization from 2014 to 2017.

Constant corruption and cronyism

Beyond the threat of a gradual erosion of citizens' rights , it is the circumvention of these rights through corruption and systemic patronage that undermines the country's recovery efforts. Ranked 157th out of 180 of the world's most corrupt countries , Iraq has had over $410 million embezzled by politicians since 2004, according to Transparency International. With extremely concentrated power, sectarian elites seize and share oil revenues, using them to buy loyalty , and divide up construction projects and foreign direct investment.

Projects are no longer political but community-based . Corruption also weakens the "public trust " necessary to carry out certain political projects and strengthens the influence of tribal jurisdiction through pressure exerted on judges during sensitive trials. In this regard, the head of the anti-corruption commission, Machan al-Joubouri, told Amnesty International in 2021, "If I give you the exact figures and the names of the people involved in corruption tomorrow, I'll be dead. I'm sorry, but that's the absolute truth."

Women and sexual minorities, the forgotten ones of Iraqi law

In the constitution, in the laws, and in their application, female citizens are far less protected than male citizens . While no penalty is prescribed for perpetrators of domestic violence, a rapist is permitted to marry his victim to escape any conviction , and Article 41 of the penal code authorizes husbands and fathers to inflict corporal punishment on women according to their own judgment.

In February 2023, for example, Tiba al-Ali's father was sentenced to only six months in prison for his daughter's murder. Sexual minorities, meanwhile, are subject to intense police surveillance. The word "gender" is banned in the media, and the term "homosexual" must be replaced by "sexual deviance" since August 9, 2023. A bill proposing the death penalty for same-sex relations is also in its first reading and, according to the President of the National Institute of Social Security (INSM), is likely to be adopted soon.

What justice is there for displaced populations?

Seven years after the government announced its victory against the Islamic State, Iraqi authorities closed the last displaced persons camp in Nineveh province, leaving the 1.2 million internally displaced persons with only the option of the Kurdish-controlled Iraqi Kurdistan camp.

Displaced families headed by women are blacklisted by intelligence services under the pretext of belonging to the Islamic State , preventing them from obtaining the civil registration documents necessary to exercise their rights and putting them at risk of arrest at various checkpoints. This process, which encourages illegal activity, violates Articles 14 and 15 of the constitution, which are supposed to guarantee the security of every individual and protect them from discrimination.

Tishreen protests and movement in the Iraq of tomorrow

Keen to maintain and expand their control over spaces for citizen expression, on May 9, 2023, Shiite members of parliament proposed a law aimed at regulating the exercise of freedom of expression and peaceful assembly, and authorizing authorities to dissolve NGOs without a court order. Thus, the fear of a second Tishreen movement motivates and justifies the introduction of increasingly restrictive and repressive bills for Iraqis.

Tishreen Movement, 2019

Will the sacred fall under the purview of laws?

For just under a year, another bill , this time presented to parliament in its second reading, aims to prohibit any attack "on religions, religious beliefs, and sects." Those found guilty of "political insults to a ritual, symbol, or person that constitutes an object of sanctification, worship, or veneration for a religious sect" risk up to 10 years in prison and a fine of 10 million dinars (7,600 dollars).

Banning criticism of religious figures , who are omnipresent in all spheres of power, amounts to immunizing the main targets of citizen criticism. Yet, according to the International Covenant on Civil and Political Rights (ICCPR), the relationship between rights and restrictions, and between norms and exceptions, must never be reversed. This text also aims to prohibit any gathering without authorization obtained five days in advance.

Without any specific criteria for acceptance, the Iraqi authorities reserve the right to prohibit any gathering without explanation, citing Article 21 of the ICCPR . The UN Human Rights Committee stressed in May 2024 that "requiring authorization from the authorities undermines the principle that the right to peaceful assembly is a fundamental right… when an authorization regime continues to exist in domestic law, it must, in practice, function as a notification system and authorization must be granted automatically unless there is a compelling reason to the contrary."

Cyber law: censorship adapted to social networks

Besides physical gatherings, demonstrations, and press articles, social media has, for over 10 years, been a space for citizen expression where anonymity allows for denunciation and criticism, but also where digital traces allow authorities to link a post to its author. And like any space for expression, this space is not immune to the surveillance ambitions of Abdel Latif Rachid's government.

Following a series of trials for indecent publications between January and June 2023, the Minister of the Interior has introduced a bill that would extend the authorities' eAffective censorship to the digital world: this is the "cyber law." This law, whose progress is regularly reported by the INSM (Iraqi Network for Social Media), would allow for the punishment of anyone criticizing public policy .

Once again, a very vague definition allows for the arrest of anyone whose statements are "likely to harm the higher economic, political, military, or security interests" of the country. The penalty could range from imprisonment to life imprisonment , as well as a fine of 50 million dinars (approximately $38,000).

Still under discussion, yet already in effect , the law allowed the governor of Basra, himself accused of corruption, to imprison journalist Haidar al-Hamadani following a complaint of defamation in a critical Facebook video viewed over a million times. Iraqi comedian Walid Hassan commented on this, saying, "I can no longer mock a party, the state, a public figure, or even the state of the roads, water, schools, or bridges. Why? Because all of that belongs to the political parties ."

In this campaign, which did not wait for judicial approval to begin, more than 50 people have already been charged and arrested since mid-February 2023 for immoral content on social media.