Will Iraq's new 'tribal court' undermine rule of law?

Amid Iraqi calls to reinforce the rule of law and strengthen Iraqi state institutions, the Ministry of Justice announced March 28 a new initiative for “arbitration” among tribes, allowing a team of tribal elders to intervene as arbitrators in resolving all possible disputes and conflicts between Iraqi tribes.

According to a statement by the Ministry of Justice, this team of 47 tribal leaders will be called “al-Awaref,” selected by the Iraqi Ministry of Interior in virtue of a memorandum of understanding with the Ministry of Justice and to be charged with several tasks, most notably reducing the expansion of tribal conflicts and focusing on “bringing about community peace” in Iraqi provinces.

The 47 arbitrators will work voluntarily and receive no salaries from the Iraqi state. In addition to undergoing a background check by the Ministry of the Interior, their names were presented to tribal leaders for approval.

A March 28 statement issued by the Ministry of Justice noted that the ministry “has adopted a team of well-known tribal arbitrators to resolve disputes,” describing them as “a safety valve for the community, which will have a major role in strengthening security and establishing community peace in all provinces of the country.”

Abboud al-Issawi, the head of the tribal committee in parliament and a staunch supporter of the initiative, told Al-Monitor, “[The initiative] will support the law, preserve tribal life and prevent any abuse by persons who have nothing to do with it and do not follow its religious and social criteria.”

Issawi said, “This initiative will neither be too different from Islamic law nor will it be contrary to human rights. In the coming phase, we will work on making it more organized and consistent with the work of the Iraqi state.”

The arbitrators will be allocated to different Iraqi provinces: four arbitrators in Baghdad, two in al-Karkh and two in al-Rusafa, while other provinces will be assigned either one or two arbitrators, all of whom will be directly affiliated to the Ministry of Justice.

Sarhan al-Fatlawi, a sheikh from al-Fatla tribe, told Al-Monitor, “Such a bill can be of use to highlight the role of tribes in building the community and supporting the Iraqi state, especially as Iraqi tribes have achievements throughout the history of the country. So we do not see any harm in such a bill that will put a stop to those who encourage tribal revenge.”

He added, “Tribal problems are aggressively developing into conflicts for simple and minor reasons, all because of those who considered themselves tribal sheikhs when — in fact — they were not. We believe that the tribal arbitration bill will be essential for tribes and will help end issues before they develop into armed clashes, such as those that occur in some areas of southern Iraq.”

Meanwhile, the arbitration initiative comes at a time when conflicts between the Iraqi tribes dramatically escalate, especially in the provinces of southern Iraq where conflicts are constantly evolving and involving the use of medium and heavy weapons.

According to activist and blogger Ibrahim al-Fatlawi, this bill was not welcomed by civil society, which considered it to be “propaganda” for political parties, undermining the work of Iraqi state institutions.

He told Al-Monitor, “We live in a country known to have enacted laws 7,000 years ago, so how can we accept projects and decisions that strengthen the power and influence of tribes within the institutions of the Iraqi state?”

Fatlawi expressed his surprise with “the lack of parliamentary action to undercut the work of the Ministry of Justice and Ministry of Interior through the tribal arbitration project, which will abolish the role of law little by little.”

The tribal arbitration initiative could violate the Iraqi Constitution, which stipulates in Article 45, paragraph 2, that “the state shall seek the advancement of the Iraqi clans … in a way that contributes to the development of society. The state shall prohibit the tribal traditions that are in contradiction with human rights.” Here lies the problem in some tribal traditions that violate the law and human rights principles.

Some of these traditions involve males preventing their first-degree female relatives from marrying someone else, should they wish to marry the females themselves. Other traditions that violate human rights include vengeance and separation, which give tribal sheikhs the right to determine how much money an offender’s family should pay to the victim’s family as compensation, in the event of any problem.

Rahman al-Jobori, a senior researcher at the National Endowment for Democracy in Washington, told Al-Monitor, “After thousands of years of Iraqi civilization, the state comes up with such an initiative for electoral purposes, instead of enacting a proper law approved by the state.”

Jobori said, “This project is substandard. The Iraqi state needs to work in accordance with international mechanisms for human rights and institutional work, and such an effort cannot enhance the role and authority of the law and treat everyone equally.”

It seems that the work of the team of arbitrators will be parallel to that of the Iraqi judiciary; the 47 arbitrators will form a committee and the conflicting parties can either resort to the judiciary or to the arbitrators who were introduced, in training courses, to the need to issue decisions that do not oppose Islamic provisions and Iraqi law.