Maria Rita Corticelli has been director of the Centre for Genocide Studies based in the Kurdish Region of Iraq from 2016 to 2019 where she specialized on religious minorities. She has been working as researcher and project manager for international NGOs operating in Latin America and the Middle East. Currently she is a consultant for the Shoah Foundation, an editor for the International Journal of Humanitarian Studies published by the King Salman Humanitarian Aid and Relief Centre (KSrelief) and for the King Faisal Center for Research and Islamic Studies, and an analyst for EGIC.

 

Abstract

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This article shows how the lack of transitional justice in Iraq is affecting religious minorities. The case study of the Kakais is a striking reminder of the need for change to guarantee a peaceful coexistence in the country.

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The Lack of Transitional Justice Jeopardizes the Recognition of Kakais in Iraq

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In 2010 the Office of the United Nations High Commissioner for Human Rights (OHCHR) recognised that implementing the main concepts of transitional justice ‘is needed for peace to prevail. A few years earlier, in 2006, the United Nations High Commissioner for Human Rights, Louise Arbour, said: ‘transitional justice must have the ambition to assist the transformation of oppressed societies into free ones by addressing the injustices of the past through measures that will procure an equitable future. It must reach to—but also beyond—the crimes and abuses committed during the conflict that led to the transition, and it must address the human rights violations that predated the conflict and caused or contributed to it.’[1]

When in 2003 George W. Bush intervened in Iraq the ignorance of his Administration to the reality on the ground in Iraq led to the country’s unavoidable division. In his book The End of Iraq: How American Incompetence created a War without End, Peter Galbraith denounces the complete shamble of the American-led post war Iraq and the distrust toward Iraqi people and culture which very quickly transformed what was supposed to be a liberation into an occupation. This process was extremely damaging not only for the Americans but, more importantly, for all Iraq.

 

This political will for a united Iraq makes even less sense now when it is evident that Baghdad’s central government has not been able to make the already shaky idea of federalism work after the fall of Saddam Hussein’s regime. The sanguinary war between Shia and Sunni Muslims heavily compromised any attempt at nation-building. It dramatically reaffirmed the idea that Iraq was very far away from any sense of unity. The 2005 constitution was based on the Transitional Authority Law (TAL) imposed by the Americans and Paul Bremer, Administrator of the Coalition Provisional Authority (CPA), with ‘no opportunity for public comment or input, an omission unheard of in modern constitution writing, and this angered many Iraqis.’[2] The 2005 Iraqi Constitution, which should have paved the way to a new country, already contained all the contradictions that led to the subsequent war and new authoritarianism that materialised in the eight-year reign of Prime Minister Nouri Al-Maliki.[3]

 

The Constitution itself guarantees equal treatment of all Iraqis irrespective of ‘gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.’[4] However, the insistence on the obedience of Islamic law constitutes a serious obstacle to implementing these laws. In general, ‘almost all these laws resulted in potential discrimination against minorities, because they were rooted in Islamic Shari’a principles that did not account for non-Muslim communities.’[5] This distinction put the survival of non-Muslim communities in danger and, in case of war, fails to provide them any protection. In addition, on a basic level, the adherence to the Shari’a law does not allow non-Muslim citizens to identify themselves in the culture of the country.

 

This was very clear during the debate on a new law proposed by Baghdad on 31 October 2017, which  sparked a massive controversy in Iraq and around the world. The Iraqi government proposed an amendment to the country’s personal status law, which would allow men to marry nine-year-old girls.  Since 2014, it was the second attempt to change this law, dating back to 1956. The draft law, withdrawn due to the strong internal and external opposition, would have reverted women’s situation in the country, allowing Muslim clerics to decide on marriage contracts and restricting women’s rights regarding the custody of children and inheritance. The law would have, in theory, applied only to Shia Muslims. However, since the Shari’a Law applies to all Iraqi citizens according to the Constitution, it would have affected minority groups and caused even more divisions among them. Other amendments in the bill, which included provisions that would legalise marital rape and prohibit Muslim men from marrying non-Muslims, would only reinforce that.[6]

 

This is only one of the latest examples of the country’s failure to protect minorities stemming from the 2005 Constitution’s inconsistencies. A constitution should reflect the country’s diversity and the similarities shared by the variety of religions practiced on its territory rather than being written with a specific group in mind, otherwise there is a risk of hindering religious freedom.

 

Since 2003 and the fall of Saddam’s regime Iraq has been at the centre of numerous internal and external conflicts. Internally, the Sunni-Shia war between 2006 and 2009, as well as the presence of Al Qaida and  the advent of Islamic State of Iraq and Syria (ISIS) in 2014, led to chronic instability and a permanent state of war. Externally, the ever-present interference of regional powers such as Iran and Turkey, coupled with the Syrian war consequences, has inhibited any attempt at a real nation-building process in the country. All these conflicts have caused a dramatic series of forced displacement resulting in the wreaking up of old communities. Particularly hit by this were religious minorities living mainly in the Nineveh Plain and the border areas with Syria.

In this context, the subsequent Iraqi governments were trapped in ethnic and religious conflicts and were consequently unable to guarantee security to its citizens. Notably, politicians like Maliki have held on to power with the support of militias operating in parallel to the Iraqi army.[7] The existence of militias is still an essential factor of instability in the country. Many Iraqis were born after the advent of ISIS, which prompted different communities to defend themselves from the attacks. At least fifty militias operate in different areas besides the known presence of the Iraqi army and the Peshmerga in the Kurdish region. Security is, therefore, the main concern for any community that attempts to rebuild itself.

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Is transitional justice possible in Iraq?

 

Trials and truth commissions became the main mechanisms of transitional justice in Latin America, where most of the affected countries managed a peaceful transition to democracy and saw their institutions strengthened as a result. There has not been a similar transitional justice process that would follow this pattern in the Middle East.

To analyse the process of transitional justice in Iraq, it is important to distinguish between the different approaches to human rights and post-conflict policies (partially) adopted by the central government in Baghdad and the Kurdistan Regional Government (KRG) in Erbil. 

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In the aftermath of the war and the US occupation of Iraq, every initiative regarding the administration of justice has been subject to American supervision. This ultimately jeopardised the whole process since the Iraqi High Tribunal had to act during a foreign occupation and in the middle of the civil war between Shias and Sunnis. The result was that the “Iraqi-led” judicial system envisaged by the United States constitutes a special case in the literature of transitional justice. Born to be an endogenous system, it ended up as a victim of the past sectarian violence, that swept the country after the fall of Saddam Hussein. The de-Baathification process implemented by the CPA complicated matters further because it fuelled the divisions.

In general, the process was heavily jeopardised by two elements included in Order 1 and 2 of the CPA, on the necessity to clean the civil service and to disband the military and security services. Regarding Order 1, the vetting of the people belonging to the party was carried out based on the rank of the accused, while ignoring all personal history. This automatically excluded all members who were not guilty of human rights abuses and could have helped reconstruct a working state apparatus. Moreover, the swift process immediately gained a sectarian connotation to the point that Shi’as started to talk about the de-Sunnification of the Iraqi society.

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The whole process lacked the political commitment to pursue justice and security, two elements that Yaacov Bar-Siman-Tov indicates as fundamental to the journey towards reconciliation and democracy.[1] The Iraqi High Tribunal failed to deliver criminal justice, and the conflict together with the American occupation failed to deliver the compensatory and culture justice that would have led to the society’s  reconciliation. As a result, the governments in Baghdad failed to implement the 2005 Iraqi Constitution and smooth down the ethnic divisions. The political failure led to the repetition of violence with the current war against ISIS. The Iraqi government never promulgated laws for the inclusion of all parties but has always been very influenced by the politics of its neighbours, read Turkey, Iran and Syria. Consequently, any political recognition always followed ethnic and religious lines.

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The transitional justice process in the Kurdistan Region of Iraq and its social and political consequences has received even less attention than the same process in Iraq. Since 1991, the history of the Kurdish region of Iraq seems to run on a different path from the Iraqi one. How does the experience of transitional justice and the implementation of human rights impact the society living in the region? What role has the KRG played in promoting a human rights culture? Until now, the analysis of human rights has mainly dealt with non-governmental organisations (NGOs) operating in the area. However, the KRG’s role in promoting a human rights culture has been fundamental for nation-building. This report seeks to address this gap by sketching the relationship between human rights and the KRG. It will conclude with a critical analysis of KRG’s limitations in the promotion and implementation of human rights, demonstrated on a case study of Kakai people who are trying to make their voice heard following a series of deadly attacks perpetrated by ISIS.

 

Human Rights in the Kurdish Region

 

Iraq was internationally isolated during Saddam Hussein’s dictatorship and had to wait until its fall in 2003 to be reintegrated into the international community. Following the United Nations Resolution 1500, the UN Assistance Mission for Iraq (UNAMI) was established. The scope of this mission, still operating in 2020, focuses on ‘advancing inclusive political dialogue and national reconciliation; providing assistance to the electoral process; facilitating regional dialogue between Iraq and its neighbours; promoting the protection of human rights and judicial and legal reform.’[2] Nevertheless, Iraq’s recent history, plagued by sectarian wars and failed governments, has prevented these programmes from having a real impact on the society. Reconciliation and dialogue have failed as well as the protection of human rights for most Iraqi citizens. The situation worsened after 2014 with massacres of Yezidis and Christians perpetrated by ISIS. This situation of perpetual conflict complicates UNAMI’s work and does not favour far-reaching initiatives regarding the awareness of human rights. Therefore, despite the UN’s presence in the country, Iraq runs the risk of remaining isolated from the international community in the planning and implementation of human rights.

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However, in all this, the KRG appears as an exception. The constant state of war has overshadowed its role in the human rights promotion and the status of a quasi-state still engulfs it. Since its establishment in 1991 the KRG has adopted human rights towards nation-building, inaugurating a trend that will become an essential reference point for the region’s institutions and citizens.

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Before discussing the relationship between the KRG and human rights, it is important to point out that states’ interest in human rights has complex and dangerous ramifications since their involvement could spark resistance and social unrest.[3] On the other hand, human rights have become a way for states to engage their citizens and reassure them that their rights will be respected. In this framework, this article aims to analyse the commitment of the KRG towards human rights promotion in the region, taking into account the complex ramifications and contradictions that define the relationship between states and human rights.

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The Kurdish people associate the beginning of transitional justice in the region with the establishment of the no-fly zone and the 1991 uprising when the Peshmerga released 90,000 prisoners, arrested for working with the Iraqi government, without charges. In more than one interview with local officials, this episode was presented as an example of Kurdish willingness to forgive. This attitude is also reflected in Massoud Barzani’s controversial decision to issue amnesty for all 450,000 Kurds who collaborated in some way with the regime.

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This analysis also has to consider the particular situation of the KRG and its origins. The KRG is what Denise Natali has defined as a quasi-state, thus not a recognised state.[4] However, since its birth in 1992, the experience of the KRG has parted significantly from the rest of Iraq. In the first eleven years, the Kurdistan region was abandoned to its destiny by Saddam Hussein and this gave it the space and opportunity to organise its own, unique, socio-politcal and economic life despite the 1994-1998 civil war, that tore the society apart. The tensions and the contradictions that are part of every nation’s history have not prevented the drawing of a continuous line regarding the commitment of the KRG to human rights.

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The 2005 Iraqi Constitution provided greater flexibility in that the Kurdish people could accept that politics and religion do not have to go together and that state secularism forms the bedrock for guaranteeing the respect for minorities. Peter Galbraith in his assessment of the failure of the Bush administration mentioned that the Kurdish elite was able to include provisions for human rights and territorial issues in the drafting of the 2005 Constitution.[5]

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Contrary to the spirit of the Iraqi Constitution, in which the theme of identity could not be separated from religion, the 1992 Kurdish draft constitution already reflected a multi-faith society and provided a rare example of tolerance in a land that seems to disappear under the yoke of religious extremism. Almost a premonition of the current situation in which the constant flow of refugees, due to the rise of ISIS, have increased the presence of minorities in the region.

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Very few scholars have exhaustively discussed this process, overshadowed a few years later by the cruel civil war (1994-1998). However, these first steps are fundamental to understanding the development of the KRG and its role in supporting the cr