In Iraq, the law is not always applied equally and the ancient system of tribal law is proving more popular. But can the two systems co-exist? And what happens when state officials start using it too? The meeting began with verses from the Koran and ended satisfactorily with stress-relieving cups of tea. The two delegations of senior family members had come together in a specially prepared meeting place in the Hurriya neighbourhood in northern Baghdad in order to resolve a dispute between their clans. The conflict had started after a fight between two sons from each family. Then one of the sons died of a heart attack on the way to the police station. The other family blamed the fight for the man\'s death.
And because the two families originate from the tribes, Kinani and Budayri, in southern Iraq, an area with strong traditions, they had decided to solve their problems using tribal law. As American political scientist Katherine Blue Carroll wrote in a January 2011 report, Tribal Law and Reconciliation in the new Iraq, published in the Middle East Journal, “well-developed systems of tribal [or customary] law originating in the pre-Islamic era have continued to function in the modern Arab world”. Although religious or political figures may get involved, usually the process centres on mediation between the two conflicted parties by a family, or tribal leader. The mediator, Blue Carroll writes, determines the facts of the case and works out what sort of reparation is suitable, according to tribal legal codes before enacting some kind of communal reconciliation. “Given the weakness of the new Iraqi state and in particular its legal system, it is not surprising that tribal law surged in to fill the gap,” Blue Carroll noted.
Iraqi sociologist and researcher Ali Jawad agrees: he has seen an increasing number of Iraqis turn to tribal law over the past eight years. “Weak laws and legislation, and corruption inside the authorities, are the causes,” he told NIQASH. The security vacuum that arose after the US-led invasion of Iraq in 2003, the absence of the rule of law and the eventual collapse of almost all government and civil institutions, have seen tribal law become more prevalent and popular than ever. Tribal law is an ancient tradition in the Middle East but it had been kept in check by strict republican regimes in Iraq since the 1950s. Iraqi dictator Saddam Hussein, who led the Baath political party, had actually tried to use the tribal system to his own advantage, appointing tribal leaders that would be loyal to him –often though, these tribal leaders were not respected by the tribes themselves; they were nicknamed “Baath sheiks”. But this has changed. In fact, according to Sheikh Abdul-Hadi al-Kaabi, a high ranking cleric who knows tribal law well and who was readying himself to mediate between two Baghdad families when NIQASH spoke with him: “Tribal law now has the upper hand over civil law”.
"There is a simple formula which explains this phenomenon,” Iraq’s Minister for Tribal Affairs, Jamal al-Batikh told NIQASH; al-Batikh is a tribal leader himself and has been involved in several mediations using tribal law. “When the state is strong and capable of imposing the letter of the law, every person feels that his rights are respected. But when the state is weak for one reason or the other, and is incapable of enforcing the law throughout the entire country, then tribal associations become stronger and tribal laws are applied more frequently.” “When civil law is not applied justly, without discrimination, then tribal law becomes the only option to protect people and their families,” Jawad agreed. One might imagine that tribal law would mostly influence rural dwellers in Iraq, where tribal links are still strong. However, more recently, tribal affiliations have also become increasingly influential in urban areas such as Baghdad, the northern Ninawa province and the southern Basra province. Tribal influence is even strong, albeit less visible, in the semi-autonomous region of Iraqi Kurdistan, generally considered to be the safest, most regulated civil society in Iraq. In fact the region’s president Masoud al-Barzani, of the Kurdistan Democratic Party, is a prominent tribal leader which accounts for some of his popularity among the electorate.
And over the past few years tribal laws have not just been being used more frequently by ordinary Iraqis. Tribal law has also become more common in disputes between government employees and even high ranking officials. One of the latest examples of this came from within some of the highest political circles after the Inspector-General of Iraq’s Ministry of Health, Adel Mohsen, accused the former Minister of Health, Saleh al-Hasnawi of corruption and mismanagement. The eventual settlement between the two men, reached through tribal law, had three conditions. Firstly, the Iraqi state television channel that had broadcast Mohsen’s original accusations, would also broadcast an apology. Secondly, damages of IQD 150 million (around US$ 130,000) should be paid to the complainant. However al-Hasnawi’s family waived this condition – it is quite common for victims to waive financial damages as it is seen as the honourable thing to do and much of tribal law mediation is based on restoring honour. And thirdly, the two parties would promise not to raise the subject again. Should they do so, they would be required to pay double the fine specified in the second condition. There are plenty of similar examples. Parliamentary sources confirm that MP Haider al-Abadi, a high ranking member of Iraqi Prime Minister Nouri al-Maliki\'s party who was tipped for the prime minister-ship at one stage, is preparing to use tribal law in a dispute with a colleague in his own parliamentary coalition who used abusive language about him. The incidents of abuse were also circulated as a video clip on YouTube.
Other information obtained by NIQASH indicates that the former Dean of Education at Baghdad University is also turning to tribal law. The academic was accused of falsifying documents by another senior university employee and the accusation resulted in the loss of the former’s job. Although tribal law cannot reinstate the academic, it can allow the former lecturer to reclaim his honour. Just how important tribal laws are becoming in Iraq’s fledgling democracy can be seen in the number of official institutions that have been created to deal with tribal law and tribal traditions. There is the Ministry for Tribal Affairs, the Department for Tribal affairs within the Interior Ministry and the “tribal support councils” funded by the prime minister’s office. All of these offices deal with the overlap between official legislation and tribal law.
In modern Iraq, many legal and religious authorities are generally happy to accept resolutions made by tribal law because of the way it is able to solve social problems holistically and consensually as well as come up with quick solutions that don’t require government involvement or bureaucracy. This accepting attitude on the part of the authorities stems from the populace’s long term respect for tribal law and their willingness to apply it. However although tribal law has many benefits – it works over time, it takes a holistic view of the problem, the mediators are skilled and respected, the resolutions are consensual – there are also disadvantages. Basic tribal law is not written down anywhere and although research indicates that most tribes appear to have similar code, there are no definitive legal texts. Which is why it may be open to manipulation by lobby groups with vested interests or newly emerging tribal leaders with their own agendas.
Additionally, when applied at state levels, it may not be in the best interests of the Iraqi people or democratic values. In the case, previously mentioned, where two high ranking officials in the Ministry of Health were in mediation, one of the parties threatened to present files that documented the alleged corruption and mismanagement. But because of the tribal law settlement, those files will most likely never see the light of day – even though corruption at the Ministry of Health is clearly an issue of importance to Iraqi voters. Adherence to tribal law could obviously also cause confusion in a society where there is also a recognized penal code. In many of the cases where tribal law is applied, civil law would also be applicable. That confusion was described by widely respected, deceased Iraqi sociologist and historian Ali al-Wardi as life “in between the nomadic and the civilized.”
How do Iraqi individuals deal with this? In tribal law, when a dispute arises, the complainant decides whether they wish to use tribal law or go to the legal system. If they choose tribal law, then the accused must abide by their decision – if they do not, then it may mean that more members the two tribes involved are forced into a wider dispute, perhaps even a feud. What this means in effect is that family and tribe members would most likely persuade the accused to accede to the complainant’s wishes- then the whole issue goes to tribal law. If both parties decided to use the legal system, that is also acceptable. Asked about conflicts between the civil law code and tribal law, al-Batikh, the Minister for Tribal Affairs, told NIQASH that “when the government is able to implement its laws throughout the country and when people respect those laws, then they will eventually stop using tribal laws”. The minister was quick to point out that things went both ways: Civil law was also being used to resolve tribal disputes. “Eventually we will reach perfection,” he concluded. “Everybody will respect the civil law when people start respecting traffic lights.”