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
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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:
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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
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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
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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