Centre for Public, International and Comparative Law

SEMINAR ON IRAQ’S INTERIM CONSTITUTUTION

2 April 2004T C Beirne School of LawUniversity of Queensland

Dr Ann Black

Complexity of Iraq

• Ethnicity

• Religion

• Tribe

• Ideology – politics

• External influences

Iraq and its neighbours

The Ethnic Factor

Multi-ethnic society esp in the North– Arabs 75%– Kurds 18 %– Remaining 7% comprise:

• Assyrians - (Ashuri/Authori) *• Turcomen• Yazidi • Shabak• Armenians*

Iraqi Arabs

• Arab Conquest 634 AD – Khalid ibn al Walid

• Arabic language

• Muslim

• Tribal groups• Conversion did not negate tribal values &customs

Iraqi Kurds

• Descendants of the Medes –Zoroastrians

• Conversion to Islam in 7th Century• 22 million people in 6 countries - 10 million in

Turkey, 5.5 million in Iran, 3.5 million in Iraq and pockets of population in Syria, Azerbaijan and Armenia

• Homeland

• Speak Farsi variant.

• Tribal groups

Assyrians (Authori in Iraq)

Indigenous people of Iraq – 300,000 +

Speak Aramaic

Christian –Ancient Church of the East – also Chaldeans.

Promised Independence after WW1

Background on Islamic law & religion

• Adherence to Islam is inseparable from adherence to Islamic law.

• Syariah – Quran & Sunnah - was prescribed by Allah.

• Injunctions cover wide range– Embraces the spiritual and secular

• Fiqh – deducing, interpreting and developing the Syariah is the role of the jurist, not the judge & not the State..

• Secular law has a recognised role.

Divisions - Fiqh Madhhabs (schools of law)

• Recognise one Quran and sunnah

• Differences on the fiqh/ jurisprudence: – Shia (Jafari)*– Sunni

• Hanafi*

• Maliki

• Shafii*

• Hanbali

Why the divisions?

After the death of the Prophet in 632AD there were two issues:1.The practical implementation of the Islam

2.The succession and leadership of the Muslim community

Decision in favour of consensus over lineage

Shia

• Those supporting lineage - Shi’ate Ali • Martyrdom of Ali and defeat of Hussein• Belief that the prophet’s successor is a divinely

guided and infallible religious teacher – Imam.• Division as to the Imam after Ali. • Legitimacy of leaders is by descent from the

Prophet & through Ali.• Hierarchy of interpreters in the ulama of the Quran

– Mujtahid (legal interpreters) - Ayatollah (sign of God)– Ayatollah al-uzma (greatest sign of God)

Sunni

• People of unity and tradition

• The caliphs are the Prophet’s political

successors

• The religious successors are ulama

• Political leaders should submit and enforce the rulings on religion and law of ulama

• Sunni Islam was not monolithic

Legal Pluralism

Except Saudi Arabia & Iran, most Muslim countries have hybrid legal systems – European – derived legal codes law and Islamic

law– Syariah Courts typically administer family and

personal law– Syariah principles may be constitutionally

recognised

The Religious Factor

• Muslim – 95%– Shia – 60%

• Majority Arabs

• Small numbers of Faili Kurds.

– Sunni – 35%• Arab Sunni 12-15%

– Hanafi

• Kurdish Sunni 18-20%– Sufi orders, Shafi’i

– Christians, Yazidis and small number of Jews –5%

Ethno-religious groups

Political factors

• Exiles versus locals• Sunni domination

– Sunni Ottoman Empire maintained Iraq as a Sunni bulwark against Persian Shia

– Baathist Party, although secular, used Sunni Islam as part of its identity

• Harshly persecuted other Islamic movements – Wahhabism• Controlled Shia practices • Drew on Arab nationalism• By 1990 Shia included on Revolutionary Command Council

– Division within Shia

Shia in Iraq

Denied political power Shia retreated from political life (unless Baathists) + economic power

Religious leadership– Shia Shrine cities – Najaf & Karbala– Different perspectives – different visions for Iraq

• Ayatollah Ali as-Sistani• Ayatollah Mohammed Sayeed al-Hakim

– Assassinations in 2003– Ayatollah Abdul Majid Al-Kohei– Ayatollah Mohammed Baqir al-Hakim

– Attitude to Iran (Persian)

Kurds in Iraq

• Kurds make up majority in 3 northern provinces

• Aspirations extend further south to Kirkuk

• Want a high degree of self-rule

• Four main political groups – varied religious affiliation

• Future for Pesh mergas fighters

The tribes

• Tribal loyalties are not based on religion

• Tribal sheiks - often descendants of tribes that came across from Arabia - have been centers of power in Iraq.

• 150 tribes

• Sidelined from the process

Iraq and its neighbours