Centre for Public, International and Comparative Law SEMINAR ON IRAQ’S INTERIM CONSTITUTUTION 2 April 2004 T C Beirne School of Law University 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 7 th 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