08.2007 - Source: UN High Commissioner for Refugees

State of the Iraqi judiciary according to UNAMI HRO ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers") [ID 22703]

"The Iraqi judiciary continues to be understaffed and badly equipped and generally lacks the capacity to provide judicial redress or protection. The Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI HRO) stated that “(e)xisting mechanisms for redressing violations are insufficient”, and expressed serious concern that

“(The) investigative capacity of the State remains limited because of security conditions as well as for lack of adequate resources and the limited number of investigative judges. Allegations made that some sectors of the security forces are colluding with armed militias or other armed groups risk eroding support for the security forces and increase the perception that the impunity gap in Iraq is growing.”74"

Document(s): Open document

22.06.2007 - Source: Institute for War and Peace Reporting

Iraqi Kurdistan's parliament is considering legislation that would officially ban polygamy ("Kurdish Leaders Debate Polygamy Ban") [ID 20500]

"Iraqi Kurdistan's parliament is challenging social and religious tradition by considering legislation that would officially ban polygamy in this northern region, in a move that has divided some Kurdish political leaders and women's groups. According to Iraqi legislation concerning the individual, which is largely derived from Islamic law, men can be married to as many as to four women at the same time. The proposed legislation would make the practice illegal in Iraqi Kurdistan, and has reignited a long-standing debate among Kurds about whether polygamy hurts or helps women, and whether legal restrictions would stop multiple marriages."

Document(s): Open document

06.2007 - Source: Freedom House

Judiciary ("Freedom in the World 2007") [ID 20738]

"The new constitution provides for an independent judiciary. The Higher Judicial Council (HJC)—headed by the chief judge of the Federal Supreme Court and composed of Iraq’s 17 chief appellate judges and several judges from the Federal Court of Cassation—has administrative authority over the court system in Iraq. In practice, however, judges have come under immense political pressure and have largely been unable to pursue cases involving organized crime, corruption, and militia activity. Since 2003, 13 judges have been killed, according to the Higher Judicial Council. The new constitution stipulates that trials must be conducted in public “unless the court decides to make it secret.” The accused are “innocent until proven guilty in a fair legal trial.” According to a recent UN report, the “growing perception of impunity for current and past crimes committed risks further eroding the rule of law.”"

Document(s): Open document

22.10.2004 - Source: Integrated Regional Information Network

Interview with senior advisor to Ministry of Justice ("original document") [ID 9973]

"Iraq's Ministry of Justice (MoJ) has gone through numerous changes in the last year as US advisers try to help Iraqis make the rule of law stronger in Iraq.

Malik Dohan Hassan, the minister, is now reviewing all of Iraq's laws to make sure they meet international human rights standards. In an interview with IRIN senior adviser to the ministry, Nouri A. Brahim said some aspects of Shariat law would remain in the system.


QUESTION: The ministry's authority appears to have changed since power to govern the country was handed back to Iraqis in late June. How is its authority organised now?

ANSWER: All of the courts are separated from the MoJ now, following a resolution from (former US administrator) Paul Bremer. Now, the government cannot have any affect on a judge's decision.

Instead, we created a council of judges. The division makes things better in that the minister makes decisions independently of the courts and the courts make decisions independently of the minister. It's more like the American system now.

Q: What was decided about the death penalty? We understand Iraq's appointed government reinstated the death penalty used under the former regime of Saddam Hussein.

A: Since the fall of the regime, we have stopped torture of all kinds in police facilities and in the prisons. We have returned to the death penalty that we had under Saddam Hussein. In many crimes before, the sentence resulted in execution. Now, only a few crimes call for the death penalty. For example, if you kill somebody, you can be sentenced to death.

Q: What is happening with the trial of former president Saddam Hussein now?

A: First, we have to review the laws governing the things he did wrong. Then the judge looks at the case. When a trial starts, it will be open to the journalists and to all other people. Actually, we are handling the investigation, but it will then be turned over to a special tribunal to try the case.

Q: Will you have a separation of religion and state in legal issues of the new Iraq, as the United States and many European countries do?

A: Our religion and our politics are intertwined. Our children have religious classes in school to make sure they understand the tenets of Islam. So, first of all, it is a country where there are many different kinds of religions, but Islam is the largest one, you have to build it up towards democracy.

Second, even though Iraq has many religious leaders, they are not extremists. For example, [Shi'ite Muslim cleric Ali] Sistani is the most respected religious leader in the country. He is not trying to tell government leaders what to do. In Iran, for example, they are much more conservative. We are much more moderate.

Q: Will you keep Shariat (Islamic) law in your justice system, the religious law governing many civil court cases?

A: Sheikhs from the tribes in Iraq most commonly use Shariat law to settle disputes. Now, most of them have a democratic feeling and that will help them. For example, the president (Sheikh Ghazi al-Yawar) has a tribal background. The defence minister Hazem Sha'alan [sheikh of the Ghazal tribe] has a tribal background too.

But the West has a false image of us. We are not just all Bedouins here. A lot of Islamic countries have a civilian law like Shariat. Where the Shariat laws fit together with our current laws, we will keep them. We are not like Saudi Arabia or Iran when it comes to laws. We are much more liberal and we will look to the future.

Q: What is the ministry's biggest goal?

A: We have many activities with other ministries and we will continue to work with them. We also control the prisons, for example. In the future, we want to become more democratic and rebuild the country with more democratic laws. I think it's possible to do that. We all want progress.

Q: What laws have changed, or what laws do you feel are needed to become more democratic?

A: We have no law for media; we have no law on political parties. New laws must be written by the MoJ and presented to [interim prime minister Iyad] Allawi and the government. If the laws are considered to be good ones, they will be presented to the Council of Ministers for approval.

Even though the ministers are not elected, there is a procedure on how to approve these things. Both the government and the interim National Assembly will make the law for this interim period before the elections. [National elections to elect a parliamentary body and regional governments are slated to be held by the end of January.] When an elected government comes into power, they will need to approve all of these laws. After the elections, things may change.

Q: Many people from other countries feel the rule of law is weak in Iraq now. How do you respond?

A: It's not weak now, but there's a new situation in Iraq. Most of the political parties came into the country with the occupation forces, so you have to separate them by the law. Iraq's political situation is very complex now. Political parties and politicians need time to prove themselves and to settle in.

Q: What is the ministry's role to play in the new Iraq?

A: Our main job is to study the laws that exist and change them if we need to, or to make new laws. We need advisers to help us with this. We are working on this now with our legal experts. Right now, the Council of Ministers [an interim, appointed body] is ready to help us make decisions. But they are not elected.

Q: How does the ministry work with other agencies, if it does, to meet its goals?

A: We are working closely with the human rights ministry now, which is very different to what we did before the fall of the regime. There was no human rights ministry then. We go to them sometimes for help. The ministry also looks to the Iraqi people now for ideas and points of view. We also want help, especially training from the NGOs and people from outside."

Document(s): original document

22.10.2004 - Source: Radio Free Europe/Radio Liberty

Muslim Scholars Association: Sharia law for military and police ("original document") [ID 9979]

"MUSLIM SCHOLARS ASSOCIATION URGES MILITARY, POLICE, NOT TO ASSIST U.S. The Muslim Scholars Association issued a statement in its weekly "Al-Basa'ir" on 14 October urging Iraqi police and military forces not to partake in operations in support of U.S.-led multinational forces. The statement issued by the Sunni organization called on these forces to disobey any orders by their superiors which go against Shari'a law and the "unity of the homeland and citizens." "The duty of the army is to protect the borders and defend values, holy places, and properties. Under shari'a law, the army is prohibited from participating in actions leading to the imposition of foreign control on the country," it added. "The Muslim Scholars Association in Iraq calls on the Iraqi police and national guard personnel to adhere to their original duties and carry out their work in compliance with the shari'a and original laws that are designed to organize their work." (Kathleen Ridolfo)"

Document(s): original document

08.2004 - Source: UN High Commissioner for Refugees

Report on the current security and legal situation, material safety, displacement situation, human rights and protection situation as well as an overall analysis ("Country of Origin Information (COI) paper on Iraq (as of August 2004)") [#24717],  [ID 9993]

Traditional legal/judicial structures

"There has been an increase in the number of people turning to traditional judicial structures since the fall of the Saddam Hussein regime. This increase can be attributed to the lack of authority and general state of lawlessness in Iraq as well as the fact that people have little or no faith in the current ability of the existing official legal structures
to resolve disputes in a timely and effective manner. The Iraqi tribal justice system is widely considered by Iraqis to be very effective, especially for criminal cases. It is also a much quicker way of resolving disputes than the long drawn-out court cases where the parties are unable to reach an agreement which is mutually satisfying. Agreements between tribal leaders are considered final, and while the courts are not obliged to adopt such decisions, they generally do as the decision is more likely to be effectively implemented when agreed upon between tribal leaders."

Document(s): Open document

01.04.2004 - Source: UK Home Office

General information about the judiciary ("original document") [ID 9974]

Document(s): original document

13.03.2004 - Source: Radio Free Europe/Radio Liberty

AL-SISTANI ISSUES FATWA PROHIBITING ILLEGAL ENTRY TO IRAQ ("original document") [ID 9980]

"The website of Al-Sistani's London office (http://www.najaf.org) on 8 March posted a fatwa by the ayatollah dated 6 February in which he forbids Muslims from seeking illegal entry into Iraq. Many Muslims pay smugglers to transport them illegally to Iraq for pilgrimage and other purposes when they do not have the proper documents to cross the border. Asked his opinion of this practice, al-Sistani wrote: "Entry into Iraq via unofficial border crossings and accepting money in return for carrying out or facilitating smuggling operations is haram [religiously prohibited], and God knows best.""

Document(s): original document

01.03.2004 - Source: Integrated Regional Information Network

Southern Iraq: Sharia law ("original document") [ID 9981]

Information how sharia law is used concerning marriage, divorce, land ownership disputes, fraud, adultery and robbery. Courts also conduct investigations, detain people with the help of youth police force.

Document(s): original document

18.02.2004 - Source: Integrated Regional Information Network

Judiciary: Judges from the old regime still active ("original document") [ID 9975]

Information about the rehabilitation, problems and necessary reforms of the legal system.

""At present Iraq is being run by the Coalition Provisional Authority (CPA)
with a US appointed Iraqi Governing Council which uses a combination of laws taken from those prior to the Baathist control mixed with
international laws.""

Document(s): original document

02.02.2004 - Source: BBC News

Tribal justice takes hold in southern Iraq ("original document") [ID 9994]

Information about tribal courts, blood money, women offered as payments

"As Iraqis wait for the establishment of a new constitution and judicial framework, so-called "tribal courts" are already administering rough justice in the south. (...) Their argument is that if there had not been a feud with the other tribe, the killing would not have taken place; they are now demanding $20,000 in blood money. (...) Eventually the price is knocked down to $4,000 and a woman, her value to be determined in later negotiations. (...)"

Document(s): original document