Navigating the Crossroads

1. Introduction

Iraq has had a chequered history with implementation of international human rights law in the past; an important example of the international community action (through the UN Security Council) against Iraq on the basis of human rights violations was the Resolution 688 adopted by the Security Council in 1991. This Security Council resolution was necessitated by the Iraqi government’s actions amounting to genocide of ethnic minorities of Shias and Kurds Northern and Southern Iraq. The Iraqi government’s actions led to international intervention under the UN Security Council resolution and since then, Iraq has been considered to be a country with a bad record of human rights protection. For students who are interested in diving deeper into the complexities of this particular issue, seeking Politics Dissertation Help can provide valuable guidance.

This research seeks to explore whether the recent changes in the Iraqi law, including the adoption of the Iraqi Constitution in 2005, have led to the adoption of international human rights in Iraq. This can be considered against the theoretical background of relativism and universalism in human rights. Relativism argues for the adoption of human rights standards in accordance with national moral and religious values, which may also set the values apart from universal human rights values. In the context of Arab states, and therefore also Iraq, relativism has been a controversial concept because universal values of human rights have at times been rejected by some Arab states as ‘cultural imperialism’ by the West. In the context of international human rights and Iraq, the focus of this dissertation is on the question as to whether universalism of human rights have impacted the adoption of international human rights in the country’s constitution and case law.

Preliminary literature review does suggest that there are cases decided by the national courts in Iraq where the courts have applied international human rights standards. However, there are also cases, which are discussed in the sections of this dissertation, where the courts have refused to use judicial review powers if the issue involves some complex Islamic law principle, in which case, the court prefers to leave the matter to the legislature. This is relevant to cases which involve rights of women as well as minorities. Therefore, there is scope to this topic of study. This study will research Iraqi Constitutional law and case law to explore the extent to which universal human rights values are now being accepted and applied in Iraqi law.

1. J Cockayne and DM Malone, ‘The Security Council and the 1991 and 2001 wars in Iraq’ in Vaughan Lowe (ed), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford: Oxford University Press 2010).
2. Ibid
3. Dhaphna Shraga, ‘The Security Council and Human Rights: From Discretion to Promote to Obligation to Protect ‘ in Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (Oxford: Oxford University Press 2011) 21.
4. Henry J Steiner, Philip Alston and Ryan Goodman, International human rights in context: law, politics, morals: text and materials (Oxford University Press 2008) 367.

The question that this research study seeks to answer is whether the new developments in Iraqi human rights law, represent a universalist approach as opposed to relativism. This question is important because since the adoption of the Iraqi constitution, which adopted some universal human rights, and mentioned Iraq’s obligations under international law, there has been a debate on whether the developments suggest a conflict between Islamic values and universal human rights. It is pertinent to explore the extent to which universal values of human rights inform the development of human rights in Iraq.

In the first section, the dissertation discusses the broader theoretical concepts of universalism and relativism in order to set the background for assessing Iraqi human rights laws and whether it conforms to one or the other concept. In the next section, the dissertation discusses the human rights law development in Iraq in the recent period, which helps to identify and define the specific developments in this area. Following this, the dissertation discusses the influence on international human rights law on the development of the Iraqi human rights law since this would help to identify whether any universalist approaches can be seen in this area. Finally, the dissertation discusses whether the recent developments in Iraqi human rights law shows inclination towards universalist or relativist positions.

1. Mohamed Y Mattar, ‘Unresolved Questions in the Bill of Rights of the New Iraqi Constitution: How Will the Clash between Human Rights and Islamic Law Be Reconciled in Future Legislative Enactments and Judicial Interpretations’ (2006) 30 Fordham Int'l LJ 126.

2. Universalism and relativism: theories and debates

In this section of the dissertation, I will undertake a detailed discussion on the theories and debates related to universalism and relativism. The purpose of this section is to depict the debate between universalists and relativists and put this debate in the context of the research study, which is focussed on Iraq and recent developments in this country’s human rights law. The debate between the universalists and relativists depicts the opposing approaches to the question of the link between human rights and culture. The debate also highlights the perception that there may be an incompatibility between western and non-western conceptualisation of rights.

Accordingly, there may be a question of whether international human rights principles are a western construct, which cannot be imposed or accepted in the Islamic countries. There will be reference in this section to the arguments presented by cultural relativist writers who argue that the international human rights principles are based on western values and for that reason, these are not aligned with the Islamic values of countries in the Arab World. On the other hand, there is an argument that human rights values are the “the fruit of various civilisations” and any opposition to universal human rights values by cultural relativists is just an “excuse for violating human rights and to put a cultural mask on the face of what they’re doing”.

There is a clear opposition in the arguments presented by cultural relativists as opposed to those presented by universalists, which will be presented as a background for the research question that is raised in this dissertation. The purpose of this section is to summarise these arguments and link this to the research question, which is, to explore whether the new developments in Iraqi human rights demonstrate acceptance of universalism of human rights.

Relativism or cultural relativism is a theory that is opposed to the universalism theory of human rights, which has shown to be particularly relevant in the discourse on human rights in the wider Arab world. Cultural relativists challenge the central argument of the universalists, which is that human rights are universal in nature and are applicable to all human beings irrespective of the cultural or historical aspects of a group or community. Relativists argue that distinct culture or practices of a people are also relevant to how human rights develop in a particular community or nation and there can be a clash between the cultural values of a people and the universal values of human rights.

1. Fauzi Najjar, ‘The Arabs, Islam and Globalization’ (2005) 12(3) Middle East Policy 91, 91.
2. Mishana Hosseinioun, The Human Rights Turn and the Paradox of Progress in the Middle East (Springer 2017) 25.

In the wider context of Arab world, of which Iraq is also a part, relativism has posed a challenge to the idea that international human rights values are universal and has instead argued that the idea of universality of human rights is a form of ‘cultural imperialism’ of the western countries. This idea is opposed by Jack Donnelly, who argues that the development of human rights happened due to modernisation and cannot be seen as a western construct in isolation of the modernisation. In this context, his statement that “human rights ideas and practices arose not from any deep Western cultural roots but from the social, economic, and political transformations of modernity”, is a significant opposition to any idea that human rights are constructed in western values. Following through on this proposition, Donnelly argues that human rights have relevance in any place where transformations in the nature of modernisation have taken place “irrespective of the pre-existing culture of the place.”

Another argument in favour of adopting universal values of human rights is based on the premise that the relativist emphasis on Islamisation of human rights fails to take into account the historically political nature of human rights which sees conflict between the state or the ruling elite and the wider citizenry. Thus, it is argued that cultural relativism presents the danger of allowing the ruling elite to use cultural reasons to deny citizens their rightful human rights. This argument is also articulated by Shirin Ebadi, who argues that opponents of human rights in the Islamic world use cultural relativist arguments as an excuse:

1. M Bertrand, Universality. Is Universality in jeopardy? (United Nations Department of Public Information 1987) 23.
2. Ibid
3. JH Steiner and P Alston, International Human Rights in Context: Law, Politics, Morals (New York: Oxford University Press 2008) 367.
4. Jack Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29 (2) Human Rights Quarterly 281, 287; also Jack Donnelly, ‘Universal human rights in theory and practice’ in Universal Human Rights in Theory and Practice (Cornell University Press 2013) 93-94.
5. Ibid, 287.
6. H Bielefeld, ‘Western’ versus ‘Islamic’ Human Rights Conceptions? A critique of Cultural Essentialism in the Discussion on Human Rights’ (2000) 28(1) Political Theory 90.
7. Ibid

“The idea of cultural relativism is nothing but an excuse to violate human rights. Human rights is the fruit of various civilizations. Those who are invoking cultural relativism are really using that as an excuse for violating human rights and to put a cultural mask on the face of what they’re doing. They argue that cultural relativism prevents us from implementing human rights. This is nothing but an excuse. Human Rights is a universal standard. It is a component of every religion and every civilization.”

While the above statement is a strong argument in favour of universalist approach to human rights, one of the problems with the argument is that it still refers to religious and civilizational values for stressing on the universality of human rights, when it can also be argued in response that different religions and civilisations had different approaches to rights. It can be argued that even if universal values of human rights reflect the universal standards of rights, there can be some areas where religious and cultural values take different or even conflicting views on human rights. As Donnelly also writes, “universal human rights, properly understood, leave considerable space for national, regional, cultural particularity and other forms of diversity and relativity.” Indeed, even in Europe, the doctrine of margin of appreciation has been developed by the European Court of Human Rights, which has held that in certain situations, states have the right to deviate from the ECHR principles in deference to their national or cultural values. Thus, even Europe allows deviation from the universal standards and introducing relativist exceptions. This raises questions about why should similar relativist values not be allowed in the countries like Iraq.

It is also argued that the opposition to universal human rights values in the Islamic world can be traced to the perception that human rights values in the international instruments are representative of an ‘imperialist’ approach to human rights. Furthermore, there may be a perception that international values of human rights are philosophically incompatible with Islamic values. Even the rights contained in the Universal Declaration of Human Rights have been argued to be incompatible with Islamic values by the proponents of a cultural relativist approach in the Islamic world.

1. Amitabh Pal, ‘Shirin Ebadi,’ (2004) 68 The Progressive 9, 9.
2. J Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29 (2) Human Rights Quarterly 281, 281.
3. G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of Legal Studies 705.
4. Abdulaziz Sachedina, Islam and the Challenge of Human Rights (Oxford University Press 2014).
5. Ibid
6. Ibid 5.

Going back to the argument made by Donnelly that human rights represent modernisation and not westernisation, in the context of the Arab world, the idea that modernisation leads to development of human rights is controversial since there is a convergence of distinct processes in the Arab world that suggest that human rights present an area of conflict at times between the state and the citizenry, which also represents opposing positions of the two that are grounded or justified on the basis of relativism and universalism respectively. The governments in the Islamic world have been criticised from time to time on their position on international human rights values by non-governmental organisations, the UN Human Rights Commission, and even foreign governments, which has seen responses from the governments in the Arab world based on their interpretation of international human rights as western values. These counter-responses to the international criticism are often grounded in arguments derived from cultural relativism. On the other hand, citizen or civil society movements in the Arab world have demanded transition to democratisation and observation of international human rights values. These demands are often couched in arguments that are derived from the universalism approach to human rights, which make it pertinent to reflect on how far universalism approaches have influenced the development of human rights law in different parts of the Arab world. In the next chapter of this dissertation, specific examples from the Iraqi human rights law development are taken before delving into how far such development is influenced by the international law of human rights and therefore, reflects on the universalist approach adoption in Iraq.

1. Fred Halliday, ‘Relativism and universalism in human rights: The case of the Islamic Middle East’ (1995) 43 (1) Political Studies 152.
2. Ibid
3. Ibid, 157.

3. Human rights law development in Iraq: recent examples

The purpose of this section of the dissertation is to provide an overview of the recent developments in Iraqi human rights law. Human rights in Iraq have also been advocated from the perspective of protection of cultural rights, since it is argued that protection of cultural rights of the Iraqi people also needs a human rights approach combined with cultural heritage. This argument also presents the further question of whether cultural rights will have to be balanced with individual rights, such as, rights of women to equality. In this respect, an argument has been made that “Cultural rights must not be confused with cultural relativism.” Therefore, one of the aspects for consideration is whether the development of human rights law in Iraq reflects protection of cultural rights without adopting a relativist approach. The purpose of this section is to list and explain developments in human rights law in Iraq and assess whether these changes reflect acceptance for universal values of human rights, including relating to the protection of cultural rights of the Iraqi people.

In 2005, Iraq enacted the permanent Constitution. The last paragraph of its Preamble notes that the people of Iraq have enacted “this permanent Constitution, through the values and ideals of the heavenly messages and the findings of science and man's civilization” and that the adherence to this law “preserves for Iraq its free union of people, of land, and of sovereignty.” The Preamble refers to religious concepts as well as mentions ‘findings of science’ in what may appear to be a blend between the traditional and the modern aspects. This may suggest that Iraq is open to the acceptance of modern and scientific values but this balances the emphasis that Iraq places on religious values.

1. R Matthews et al, ‘Heritage and cultural healing: Iraq in a post-Daesh era’ (2020) 26(2) International Journal of Heritage Studies 120.
2. Ibid, 122.

Religious values are not disregarded, rather they are given a place of respect in the Preamble itself. This becomes more clear under Article 2 which mentions the official religion of Iraq and also the status of the religious law. It provides that Islam “is the official religion of the State and is a foundation source of legislation.” It further provides that law that contradicts the established provisions of Islam cannot be enacted. This suggests that laws enacted in Iraq must be in compliance with religious principles. However, Article 2 also provides that laws contradicting the principles of democracy and C the rights and basic freedoms stipulated in the Constitution cannot be enacted. The question is whether this affects the adoption of universal human rights in Iraq if there is a conflict between the religious precepts in Islam and the universal human rights values. The Iraqi Constitution also refers to the adherence to the international law in Article 8 and provides that Iraq shall respect its international obligations. The question may be whether this includes the obligations under international human rights law.

Section 2 of the Iraqi Constitution lists the rights and freedoms under the Constitution and while some of the rights protected echo the rights in the international conventions of human rights, there are also ways in which relativism may be reflected in some of the provisions. Article 14 provides that Iraqis are equal before the law and shall not be discriminated against based on gender, race, ethnicity, nationality, origin, colour, religion, sect, belief or opinion, or economic or social status. Article 15 provides that individuals have the right to enjoy life, security and liberty. Article 16 provides the right to equal opportunities for all Iraqis. Other rights and freedoms that may echo the freedoms in international conventions include Article 38 right to freedom of thought and expression, Article 39 right to freedom to form and join associations and political parties, Article 40 right to freedom of communication and correspondence, Article 41 rights to personal status according to religions, sects, beliefs, or choices, and Article 42 right to freedom of thought, conscience, and belief. These rights are similar to the rights provided under the International Convention on Civil and Political Rights. However, the wording of some other rights and freedoms in the Constitution leave open some space for inclusion of relativism.

Article 17 reflects on inclusion of relativism since it mentions public morals. Article 17 provides that individuals shall have the right to personal privacy so long as it does not contradict the rights of others and public morals. The reference to public morals may be reflective of inclusion of relativism because public morals is related to social morality. To a degree, equality between men and women is protected under the Iraqi Constitution, but some of the rights suggest inclusion of relativism. Article 20 provides that all Iraqi citizens have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office. This applies to both men and women.

1. Constitution of Iraq, Preamble.
2. Ibid, Article 2.

On the other hand, in Article 29 where family rights are protected, it is mentioned that the “State shall preserve it and its religious, moral, and national values.” This may have implications for how the rights of women and men are organised in the context of family relations. On the other hand, it is significant that Iraq has enacted legislation to lift Iraq’s reservation to Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women.

The above discussion can be expanded with reference to the significance of cultural rights in Iraq and the ways in which cultural rights can be read into the framework of rights that affect women. To put it in context, cultural rights have been significant in the Iraqi human rights discussion because of the concerns related to protection of cultural heritage. However, protection of cultural heritage may also have implications for rights of women since there may be concerns that cultural heritage may lead to cultural relativism and the suppression of women rights on the ground that this is necessary for the protection of culture.

Some scholars contest the conflation of cultural heritage with cultural relativism on the ground that these are different concepts and that “rights of the individual should stand above cultural arguments put forward to limit them in contravention to international standards, highlighting cultural relativism as potentially dangerous and deleterious towards vulnerable sections of the population susceptible to discrimination, such as women, children and religious minorities.” However, Laurajane Smith argues that “heritage is gendered, in that it is too often “masculine”, and tells a predominantly male-centred story promoting a masculine vision of past and present.” In other words, there is a possibility that emphasis on cultural rights and heritage may lead to a promotion of values that emphasise on a male-centred perceptions of culture. Due to this possibility, Matthews argues that it is “necessary to contextualise the preservation of heritage and cultural diversity within a human rights context founded on universal aspirations of human dignity and gender equality.” Thus, while cultural rights are a significant aspect of the rights of the people, it may also be important to consider how cultural rights interact with individual rights, for which purpose, it may be necessary to ground cultural rights in the wider contexts of the human rights.

1. Kenneth Katzman, ‘Iraq: Politics, Governance, and Human Rights’ in Library Of Congress Washington Dc Congressional Research Service (2014).
2. R Matthews, et al, ‘Heritage and cultural healing: Iraq in a post-Daesh era’ (2020) 26(2) International Journal of Heritage Studies 120.
3. Ibid.
4. Ibid, 122.
5. L Smith, ‘Heritage, Gender and Identity’ in B. Graham and P. Howard (eds), The Ashgate Research Companion to Heritage and Identity (Ashgate Publishing 2008) 159.

Also important to consider is the rights of minorities in Iraq since the country is home to many minorities, some of them having been around for more than two millenia. Although Iraq has majority population of Arab and Muslim, with 75–80 per cent population being Arab Muslim, there is 15–20 per cent Kurdish, and 5 percent Turkoman and Assyrian populations. 97 per cent of Iraqi population is Muslim, and 3 percent population is Christian. Demographically, Iraq has diversity of race, religion and sect and it can be considered to be cosmopolitan in parts of country in some respects. Iraq has populations of Chaldo-Assyrians and Armenians, who form the Christian population of Iraq. Clearly, Iraq has significant populations of minorities, the issue of protection of minority rights is also a significant point in assessment of human rights protection in Iraq.

The scheme of rights in the Constitution itself lend to allegations of lack of clarity on how the Constitution balances rights of women, minorities and children with the idea of an Islamic nations where laws should not be made contrary to the Islamic precepts. Due to this reason, Eric Herring and Glen Rangwala have argued that the Iraqi Constitution fudges the role of religion in the state because it does not clarify how the ‘rule of Islam’, ‘democracy principles’ and ‘rights and basic freedoms’ will be balanced against each other. Article 2 of the Iraqi Constitution, which forms the basis of this rule of Islam as well as the democracy principles and basic freedoms, is the "repugnancy clause,” since it prohibits the enactment of any law that is contrary to these aspects. The impact of repugnancy clause is that the Federal Supreme Court can invalidate laws if these laws are contrary to the established principles of Islam as well as democracy principles and basic freedoms, but there is no clarity on how the court will balance any inconsistency between these principles, if any.

1. Matthews, et al, ‘Heritage and cultural healing: Iraq in a post-Daesh era’, supra n 30, 122.
2. B Bowring, ‘Minority rights in post-war Iraq: an impending catastrophe?’ (2012) 5(3) International Journal of Contemporary Iraqi Studies 319.
3. Ibid
4. Ibid
5. Ibid
6. Ibid
7. Eric Herring and Glen Rangwala Iraq in Fragments: The Occupation and Its Legacy (Hurst & Company 2006).

The Federal Supreme Court has had to consider the interpretation of the repugnancy clause in cases related to family law, in which cases the interpretations of the court have been critiqued as being arbitrary. Three cases exemplify the interpretation of the repugnancy clause in family law cases by the Federal Supreme Court. In the decision of 60/2010 pertaining to the role of Islamic values in the Iraqi Constitution, the Federal Supreme Court held that the judge can play the role of Islamic jurists or go directly to interpret the provisions of the Quran ignoring any previous opinions of the Fiqh. This approach would mean that the established rules of Islamic law as reflected in the Fiqh, would be disregarded by the judges in the Federal Supreme Court. In case 9/2015, the Federal Supreme Court concluded that “Islam's Settled Rulings” are to be referred to for the purpose of achieving the “ultimate justice” between spouses, thereby leading to the application of the essential values of Islam. In the decision of case 61/ 2011, the Federal Supreme Court did not engage with these principles at all and instead deferred these issues to the legislature and asked them to enact a law dealing with family law. In each of these three cases, the Federal Supreme Court had dealt with these issues in different manner.

In other cases decided by the Federal Supreme Court, the interaction between the need to follow the established precepts of Islamic law with the development of jurisprudence by the Supreme Court can be seen. In one case, the petitioner challenged the constitutionality of a legislation allowing administration of the ‘Islamic Charitable Foundation’ to take ten percent of the value of the Waqf as administrative fee, which according to the petition, violates the Shi’a rules, and by that standard, contradicts Article 2. The Court considered that such an issue required a comprehensive and specialised study of the relevant jurisprudence of all Islamic schools with regard to the administration of the Waqf and this could not be reasonably be done by the Supreme Court judges. Instead, it was recommended by the court that a single piece of unified legislation, may be drafted after taking into account all the opinions and understandings of the jurists on this issue and that until such time that the legislation was drafted, the impugned legislation was constitutional.

1. OT Mahmood, The Basis for Judicial Review in the Federal Supreme Court in Iraq: Mediating between Democracy and Human Rights through Islam's Settled Rulings (Doctoral dissertation, University of Pittsburgh 2019).
2. Al-Mahkama Al-ʾitihadya al-ʿulya [Federal Supreme Court], [FSC], Decision No. 60 of 2010 (Iraq)
3. Al-Mahkama Al-ʾitihadya al-ʿulya [Federal Supreme Court], [FSC] Decision No. 9 of Nov. 21, 2015 (Iraq).
4. Al-Mahkama Al-ʾitihadya al-ʿulya [Federal Supreme Court], [FSC] Decision No. 61 of Jan. 31, 2011 (Iraq).
5. IRQFSC 61/ 2011, al-Waqf.
6. Majida Sanaan Ismael, The Judicialisation of Constitutional Disputes in Iraq: Exploring the Rule of Law in Transitional Democracies (University of Liverpool 2016).

Two points can be made here with regard to the outcome in the above case, which have bearing on the development of human rights in Iraq. First, that the Supreme Court, despite having the power to do judicial review with regard to laws that may be in breach of rights and liberties granted by the Constitution, may instead consider the issues so complex in terms of the religious principles involved therein, that they may instead refer the matter to the legislature. Second, that the Supreme Court considers the application of established principles of Islamic law to be important for the purpose of ensuring constitutionality of acts. This may also have implications for rights of women as well as minorities since the Supreme Court may avoid judicial review in cases where they are of the opinion that the matter involves an important or complex question relating to Islamic precepts.

In a case involving family law, the Federal Supreme Court upheld the Personal Status Law provision that prohibits divorce through an agent where the law was claimed to be in contradiction with certain Shia Muslim jurisprudence and constitutional freedom of ‘commitment to their personal status.’ The court held that there is a need to consider the entire Islamic law jurisprudence on this issue and for that purpose refused to interfere with the law until the legislature decided how to proceed with this issue. The possible impact of this approach could be for minorities in Iraq, whose religious freedoms may come into conflict with the legislation and who may contest the legislation only for the Supreme Court to refuse to interfere in the matter because it involves complex issues related to Islamic jurisprudence. What can be surmised from this is that the Iraqi constitution creates a possible problem for the implementation of rights of women and minorities by the Supreme Court where the interpretation of these rights also depends on how they interact with the established principles of Islamic law.

With regard to women and their rights in Iraq, Forman-Rabinovici questions whether the process of the formation of the 2005 Iraqi Constitution even involve gender mainstreaming so as to account for intersectionality and promote rights of women not just in the context of their gender, but also in the context of their religion or sect. This is an important point since it relates to not just rights of women but also rights of minority women, which is a more complex intersectionality. The inclusion of women in the constitutional design has emerged as one of the ways in which the constitutional formation can be assessed for its inclusivity. In 2005, when the permanent Constitution was enacted in Iraq and the years immediately preceding this, the Iraqi House of Representatives had participation of 70 women, which is 25.8 percent of the House but the committee for modifying the Constitution was selected with only two women out of 27 members, which is a representation of 7 percent. This suggests that there is a gap in the participation of women in the committee for modifying the Constitution which ultimately adopted the new Constitution.

1. Divorce through Agent (59/2011) case.
2. Aliza Forman-Rabinovici, ‘Gender Mainstreaming as a Universal Tool for Constitution Writing: The Case of Iraq’ (2021) 28(4) Social Politics: International Studies in Gender, State & Society 1073.
3. Helen Irving, ‘Where have all the women gone? Gender and the literature on constitutional design’ (2012) (2) Contemporary Readings in Law and Social Justice 89.

The gaps in how women are protected under the Constitution may be linked to the low level of women participation in the making of the Constitution because there are laws which allow lesser protection to women as compared to men or create a difference between their status. This is seen in the laws related to inheritance, marriage, divorce, custody, and even citizenship. For example, discrepancy can be seen in the rights recognised under the constitution and the laws, such as, the discrepancy between the Constitutional right of women to give their children Iraqi citizenship under Article 18 and the Citizenship Law (Article 4), which states that children born to an Iraqi mother abroad, or to an unknown father or without any other nationality can be granted Iraqi citizenship at 19 years old but not at birth. While a male born in Iraq to a father who was also born in Iraq can apply for citizenship, there is no corresponding right for females (Article 5). These gaps indicate that there is a difference in how the rights are conceived for men and women in Iraq. It can be argued that one of the reasons for the same is that women representation in the process of making of constitution was not adequate.

Discrepancies are also seen in the protections sought to be provided in the Constitutional law and the penal law. For instance, Article 29 of the Constitution prohibits all forms of violence and abuse within the family but this can be negated by the Article 41(1) of the Penal Code, which allows “the punishment of a wife by her husband, the disciplining by parents and teachers of children under their authority within certain limits prescribed by law or by custom.” The Penal Code also allows perpetrators of rape or sexual assault to marry their victim for having their convictions quashed in Article 398. These provisions in the Penal Code are also at times couched in the language of tradition and culture or even religious precepts, which can provide a conflicting interaction with constitutional rights of women.

4. Influence of international human rights in Iraqi human rights

This section of the dissertation is concerned with assessing how international human rights principles and values have informed and influenced the development of human rights in Iraq. The purpose is to see if there is a link between international human rights and the development of human rights in Iraq. If there is a link, then there is a greater argument for the influence of universalism in the human rights discourse in Iraq.

There is some suggestion to the adoption of some international law values in the Iraqi context. For instance, in a 2011 case decided by the Iraqi Appellate Court in 2011, the court was faced with the question as to whether the husband has the right to prohibit his wife from travelling abroad with their children without his approval (High Judicial Council/Appellate Court, decision of June 27, 2011 (Iraq). The court applied Article 42, Section 1 of the Iraqi Constitution which provides that “Each Iraqi enjoys the right of free movement, travel, and residence inside and outside Iraq” and read it with Article 13 of the Universal Declaration of Human Rights to uphold the woman’s right to freedom of movement, which cannot be undermined by the husband. The court also made a reference to the Convention on Elimination of Discrimination Against Women (CEDAW), Article 16, to uphold the state’s obligation to protect equality as between men and women. In another case the Iraqi Personal Status Court applied the International Convention on Civil and Political Rights (ICCPR).

International human rights values, which are generally reflected in UN human rights treaties and conventions as well as the Universal Declaration of Human Rights (UDHR) were drafted with participation of different countries of the world, which is used as a reason for arguing that these values reflect the diverse cultural and religious values of different nations of the world.

An argument is made in literature that human rights are western values and that these values should not be imposed on countries that have different values. On the other hand, a counter view can be seen in literature that supports the idea that even Islamic law has imbibed human rights values although some may try to misrepresent the Sharia as allowing breach of rights of minorities. As noted by An-Na’Im, the integrity of religious faith to its followers is dependent on the effective protection of human rights. In this context, there are examples of human rights in the Quran, which also coincide with universal human rights, including rights to life, property, and social security, which are also found in the international human rights documents. Despite these examples of universal human rights values in the Quran, a relativist argument is posited alongside the perception in literature that the development of human rights is linked to the liberal and individualistic western traditions, which led to the development of important human rights proclamations, such as, the Magna Carta, French Declaration of Rights of Men and Citizens and the American Bill of Rights.

It is significant that after the occupation of Iraq by coalition forces, the question of application of international human rights law became an important issue after the Abu Ghraib prison scandal. This question was raised by Lord Lester in the British Parliament where he asked the government whether the Coalition Provisional Authority were required by law to respect the fundamental human rights of Iraqi people and if not, what recourse is available for breaches of those rights by the Authority or the forces. The question was answered by Baroness Symonds who noted that the Coalition Provisional Authority were bound by the international law and the law of the land. This is a significant point because Iraq’s recent history is unique in that it became subject to occupation in 2001, during which time, the question of human rights became important in light of being an occupied territory and against the background of the infamous Abu Ghraib prison scandal which involved violation of human rights of Iraqi prisoners by the Coalition Army forces. Since then, Iraqi laws have undergone significant changes. The question is whether these changes have reflected on the greater acceptance of universal human rights values.

1. Baghdad Court of Appeals, Rusafa, Case no. 52, 31 May 2009 (Iraq).
2. Dalia Vitkauskaite-Meurice, ‘The Arab charter on human rights: the naissance of new regional human rights system or a challenge to the universality of human rights?’ (2009) 1 Jurisprudencija 165, at 167.
3. Samuel Huntington, ‘The West Unique, Not Universal’ (1996) Foreign Affairs 28.
4. Adbullahi A An-Na'im, ‘Religious minorities under Islamic law and the limits of cultural relativism’ (1987) 9 Human Rights Quarterly 1.
5. Abdullahi An-Na'im, Islam and human rights: selected essays of Abdullahi An-Na'im (Routledge 2017).
6. N Chowdhury, ‘The Quest for Universal Human Rights: A Brief Comparative Study of Universal Declarations of Human Rights by the UN and the Islamic Council of Europe’ (2008) 12(3) The International Journal of Human Rights 347.
7. Ibid
8. Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (University of California Press 2008) 64-66; Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201, 204.

The recognition of international human rights in Iraq goes back to 1971, when Iraq became one of the first states to ratify the International Covenant on Civil and Political Rights (ICCPR). Since ICCPR creates binding legal obligations for the State Parties, it is important that ICCPR provisions are implemented in the country. In context of minority rights, Article 26 prohibits discrimination on grounds of race, religion and language, while Article 27 relates to rights of minorities (ethnic, religious or linguistic) to enjoy their own culture, to profess and practice their own religion, or to use their own language. In the Iraqi Constitution, Article 3 identifies Iraq as a country with multiple nationalities, religions and sects. Article 14 provides the right to equality and prohibits discrimination, including on religious grounds. Article 41 provides that Iraqis have freedom to commit to their personal status according to their religions, sects, beliefs, or choices. However, it is also noted that this can be regulated by the law, which can be seen to be giving wide powers to the state since there are no criteria for regulation mentioned in this provision.

Article 43 provides freedom to practice religious rites and manage religious endowments. This is also available to all people in Iraq irrespective of their religion or sect. The scheme of these rights in the Iraqi Constitution prima facie suggests that there is recognition of minority rights in Iraq. However, since most of these rights are couched in terms that allow state to regulate these rights without providing criteria based on which such regulation can be done, it can be argued that the extent to which minority rights in Iraq are protected is open to question particularly since Iraqi Constitution establishes an Islamic state, and prohibits contravention of Islamic law. The emphasis on religious principles is not only addressed to the legislator and also has impact on the judiciary.

Article 92, which provides for the establishment of a Federal Supreme Court, also provides the court “shall be made up of a number of judges, experts in Islamic jurisprudence,” along with other legal scholars. The inclusion of experts in Islamic jurisprudence indicates that the makers of the Constitution were conscious of the need to include Islamic jurists. This may signify that Islamic principles of law are just as significant as other principles of law. Iraq’s position on religion vis a vis its international law obligations under human rights covenants and conventions can be gauged from the fact that it had made a reservation to the Convention on the Rights of the Child, in the context of Articles 29 and 30. These provisions relate to the rights of the child of a religious minority the right ‘to enjoy his or her own culture, [and] to profess and practise his or her own religion’ and right to direct education for the development of own cultural identity, language and values. Article 14 protects the right of the child to freedom of religion. Iraq entered a reservation stating that its acceptance of the Convention is subject to a reservation in respect to article 14, paragraph 1, concerning the child’s freedom of religion, as allowing a child to change his or her religion runs counter to the provisions of the Islamic Shariah.

The extent to which Iraqi Constitution and other laws protect minority rights is significant in the light of the historical allegations of persecution of minorities in Iraq. In 1970, Iraq ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and while this brought Iraq to align itself with other countries that had recognised rights of racial minorities, it also brought to light the condition of minorities in Iraq through the reporting procedures when Iraq submitted its periodic reports to the UN Committee on the Elimination of Racial Discrimination. An example can be seen in the 2001 Concluding Observations on Iraq’s report where the Committee expressed its concerns over allegations that Kurds, Turkmen and Assyrians were subjected to forced relocation, denial of equal access to employment and educational opportunities and forced displacement of a large part of the population.

It is also noteworthy that the Transitional Administrative Law also made some provisions for human rights of the Iraqi people. While the question of the link between international human rights and Iraqi human rights was asked initially in the context of applicability of human rights in wartime, these questions became more relevant when the Bill of Rights for Iraq was being debated.

5. Reflection of universalism or relativism in Iraqi human rights

This section of the dissertation is concerned with assessing whether the Iraqi human rights reflect an acceptance of a universalist approach. Since the Iraqi Constitution recognised the concept of international human rights and even prohibited tribal customs that contradict human rights, this question becomes relevant. It is also necessary to explore whether further developments after the adoption of the new constitution also depict an acceptance for universal human rights.

1. Mattar, ‘Unresolved Questions in the Bill of Rights of the New Iraqi Constitution: How Will the Clash between Human Rights and Islamic Law Be Reconciled in Future Legislative Enactments and Judicial Interpretations’ supra n 5.

The third and the fourth chapters of this dissertation considered in detail the changes made to the Iraqi human rights landscape due to the introduction of the new Constitution in 2005, and how far these changes were also reflective of the international law of human rights. Despite these changes however, what can also be seen is the discrepancy between the international law of human rights and Iraqi Constitutional law. These discrepancies are more glaring in the framework on the rights of minorities and the rights of women. Although the Iraqi Constitution specifically mentions some rights of minorities and women, a relativist outlook can be seen in the way the Iraqi Constitution frames these rights by giving prominent position to religious interpretation.

An argument can be made that there is relativist influence because of the way the religious predominance is structured into the Iraqi Constitution. In the previous chapters, some discussion has been undertaken on literature critiquing Iraqi Constitution for the inclusion of the repugnancy clause in Article 2, with Eric Herring and Glen Rangwala arguing that the Iraqi Constitution fudges the role of religion in the state because it does not clarify how the ‘rule of Islam’, ‘democracy principles’ and ‘rights and basic freedoms’ will be balanced against each other. Article 2 prohibits the enactment of any law that is contrary to ‘rule of Islam’ while also providing that laws should not be made to contradict the principles of democracy and the basic freedoms. There is confusion inherent in how the courts are to interpret the requirements of the laws to satisfy both rule of Islam (a principle that is grounded in religious precepts) and principles of democracy (which are grounded in western and international law). This confusion is also visible in how the courts have interpreted the repugnancy clause and the latter’s decisions can also be said to support, at times, a relativist interpretation of the repugnancy clause by giving supremacy to the Islamic principles. In effect, while the Iraqi Constitution includes several rights of minorities and women that are clearly aligned with the international human rights law, the effect of the repugnancy clause creates discrepancies in how rights of women and minorities are framed and protected.

In other words, the impact of repugnancy clause is that the Federal Supreme Court can invalidate laws if these laws are contrary to the established principles of Islam even if there is some inconsistency with democracy principles and basic freedoms because the law does not clarify how the courts are to address such inconsistencies. This can be seen in with reference to cases that have come before the Federal Supreme Court requiring interpretation of the repugnancy clause. As discussed in the previous chapter, the Federal Supreme Court has taken the approach of deference to the Islamic rules and when in doubt, they have deferred the matter to the legislature instead of engaging with principles that demonstrate conflict with Islamic law. At times, the Supreme Court has taken a contradictory position and decided that they can themselves consider the interpretation of the Islamic law. In case 9/2015, the Federal Supreme Court concluded that “Islam's Settled Rulings” are to be referred to for the purpose of achieving the “ultimate justice” between spouses, thereby leading to the application of the essential values of Islam. In the decision of case 61/ 2011, the Federal Supreme Court did not engage with these principles at all and instead deferred these issues to the legislature and asked them to enact a law dealing with family law.

1. Herring and Rangwala, Iraq in Fragments: The Occupation and Its Legacy, supra n 40.

The effect of the growing jurisprudence in the Iraqi context is that even though the Supreme Court has the power of judicial review with regard to laws that may be in breach of rights and liberties granted by the Constitution, the Supreme Court may consider itself to be incompetent to decide religious matters that are complex and not engage with the question choosing to defer it. A more important effect is that the Supreme Court is seen to be emphasising on the significance of the established principles of Islamic law for ensuring constitutionality of acts with decided implications for rights of women and minorities. When the religious freedoms of minorities come into conflict with the legislation, and the complex issues related to Islamic jurisprudence are also involved, the relativist position of the law and the courts’ approach may be seen in how, instead of applying the international human rights principles, the courts are constitutionally required to establish the Islamic jurisprudence as well in order to see whether there is any inconsistency with the Islamic law. Thus, interpretation of rights of minorities and women and other groups would also depend on how the rights interact with the established principles of Islamic law. This has implications for the protection of rights where the rights may be conceptualised on the basis of international law of human rights but show a conflict with or inconsistency with the Islamic law. However, since the rights are framed in the context of Islamic jurisprudence, there is little to challenge the discrepancy in the law related to rights.

At the same time, there is also reflection of universalism in Iraqi human rights law, which can be seen in the way that the Iraqi Constitution refers to rights of women and minorities. Some of the cases decided by the courts in Iraq also reflect this position. Reference to the CEDAW in decisions of the Iraqi courts exemplify the courts taking an approach of universalism in some instances, such as, where the Iraqi Appellate Court considered that the husband’s right to prohibit his wife from travelling abroad with their children without his approval breaches Article 42, Section 1 of the Iraqi Constitution and the Article 13 of the Universal Declaration of Human Rights to uphold the woman’s right to freedom of movement, which cannot be undermined by the husband. The court also made a reference to the Convention on Elimination of Discrimination Against Women (CEDAW), Article 16, to uphold the state’s obligation to protect equality as between men and women. In another case the Iraqi Personal Status Court applied the International Convention on Civil and Political Rights (ICCPR).

1. Al-Mahkama Al-ʾitihadya al-ʿulya [Federal Supreme Court], [FSC], Decision No. 60 of 2010 (Iraq)
2. Al-Mahkama Al-ʾitihadya al-ʿulya [Federal Supreme Court], [FSC] Decision No. 9 of Nov. 21, 2015 (Iraq).
3. Al-Mahkama Al-ʾitihadya al-ʿulya [Federal Supreme Court], [FSC] Decision No. 61 of Jan. 31, 2011 (Iraq).

The efforts of the country to align their human rights values with the universal values contained in international treaties and conventions do show that there is some movement towards universalisation of human rights and these go back to the ratification of the ICCPR by Iraq in 1971. Furthermore, many provisions were included in the laws in Iraq to align the law with the universal values of human rights. In the context of minority rights, Article 3 of the Constitution identifies Iraq as a country with multiple nationalities, religions and sects and Article 14 provides the right to equality and prohibits discrimination, including on religious grounds. Other rights include Article 41 freedom to commit to personal status according to religions, sects, beliefs, or choices. So far, it can be said that Iraq has taken a conscious step towards aligning its laws with the universal values of human rights.

The issue is that the efforts to align with universal values may be compromised if the Iraqi Constitution also includes a repugnancy clause that is based on, inter alia, rule of Islam. It is also relevant that the rights are couched in terms that allow state to regulate these rights without providing criteria based on which such regulation can be done, as can be seen in the case of Article 43 rights. Read with the identification of Iraq in the Iraqi Constitution as an Islamic state, and the establishment of the Federal Supreme Court with “a number of judges, experts in Islamic jurisprudence,” under Article 92, the Constitution clearly creates a priority for Islamic rules and principles. As mentioned earlier, the emphasis in Constitutional law on religious principles is not only addressed to the legislator, but also has impact on the judiciary. Ultimately, the scheme of protection of human rights in the Iraqi constitution is based on the alignment of laws that protect rights with the Islamic values, and this opens a door for relativism. This may not mean that the universal values of international human rights are not adopted in the Iraqi Constitution and laws, but that there is possibly a mix of universalism and relativism in the Iraqi Constitution and laws.

6. Conclusion

This section provides the conclusion of the findings by framing the conclusion in terms of how the findings answer the research question. The research question asks for reflection on whether developments in Iraqi human rights law represent a universalist approach, as opposed to relativism.

1. High Judicial Council/Appellate Court, decision of June 27, 2011 (Iraq).
2. Ibid
3. Baghdad Court of Appeals, Rusafa, Case no. 52, 31 May 2009 (Iraq).

This research study referred to the adoption of the Iraqi constitution in 2005, and the scheme of rights protected under the constitution, as well as decisions of the courts in Iraq which relate to the rights of individuals. Based on the data collected in this dissertation research, the researcher can only conclude that relativism is reflected in the Iraqi Constitution while, at the same time, the Constitution makes an effort to adopt universal rights, so long as there is no conflict between the rights of the individuals and the Islamic values. The Federal Supreme Court, which has the power to interpret the Constitution, is also meant to refer to the questions related to Islamic jurisprudence when there is a conflict between interpretation of a right and the Islamic values. The Supreme Court has at times chosen to defer the matter to the legislature or chosen not to interpret the questions related to Islamic law, which has meant that the individual rights are subordinated to the Islamic rules.

The insertion of a repugnancy clause in the Iraqi constitution, and the establishment of a Supreme Court with inclusion of judges who are experts in Islamic jurisprudence reflects on the continuing significance of Islamic law and principles in Iraqi landscape of human rights. This also means that the judges are required to ensure that the rights of individuals correspond with the Islamic law. While it is a moot point whether there is conflict between Islamic law and international human rights, and a question for a different and deeper discussion, at this point, it can be said that at least in the case of rights of women and minorities, there may be some problems for the protection of their rights since there may be inconsistencies between the rights of women as they are framed in international law and the Islamic precepts. In this dissertation, Iraqi laws on inheritance and family relations do show that women and men are not equally placed. The reasons for this can be linked back to a cultural relativist position on human rights with some of the rights of women not being recognised.

At the same time, this research study found that there is a conscious effort to include universal principles of human rights in Iraqi Constitution. These rights include rights of women and rights of minorities. However, there is an overarching requirement of laws, including, laws providing rights, to conform with the religious principles in Islam. This leads to a situation where the rights of individuals, where not consistent with religious law, may be subordinated to the religious law and may not receive the protection of the law. This does not accord with the universalist approach to human rights where the rights of the individuals are considered to be universal and worthy of protection in every jurisdiction in the same way. This is the reason why this dissertation has taken the position that the approach of Iraqi human rights remains overarchingly relativist with a greater emphasis on the Islamic law.

Dig deeper into Navigating Legal Boundaries: Human Rights Act 1998 and Article 9 of the ECHR with our selection of articles.

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