Nineveh – Al-aalem Al-jadeed
To formally document his marriage contract, Khidr, a 25 years old Yezidi man, had to provide the Personal Materials Court in the North area of Sinjar District (127 km west of Mosul) with a paper copy of the religious marriage contract concluded by the Yezidi Supreme Spiritual Council.
“What if the divorce took place, and my inheritance was distributed after my death, will this be done according to Islamic law, even though I am a Yezidi,” Khidr wonders, referring to the fact that the Iraqi Personal Status Law in force is based on the provisions of Islamic Sharia.
“How is this contract different from the marriage contract in court?” He said while reading his marriage contract. He passes his finger over the written lines, reads in a whisper, then says while taking a deep breath: “Nothing, just a simple moral difference, it was issued by the spiritual council to be documented in the court!” Then he pursed his lips, “What does it mean?”
And he asked again: “Why do we, as Yezidis, not have the right to have our personal status laws? We do not even have a single judge in Iraqi courts.”
Khidr recently graduated from the Faculty of Law, and his questions have been the focus of the Yazidis’ discourse for about a year, especially after the bitter experience they lived following the ISIS attack on their areas in the Sinjar district and the Nineveh Plains in August 2014 and the displacement of about half a million of them to escape death and enslavement.
That attack led to the killing and kidnapping of thousands of Yezidis, and the looting and destruction of their movable and immovable property. About half of Sinjar’s residents are still living in displacement camps in the Kurdistan region, while more than 120,000 of them migrated outside the country in search of equality and security in European countries.
Daoud Jundi, a former member of the Nineveh Provincial Council, and the first Yezidi figure ever to hold the position of a civilian judge says that the issue of the Yezidis’ right to take over the judiciary was raised after the fall of the former Iraqi regime and that the Coalition Provisional Authority, which was headed by the American civil administrator Paul Bremer, appointed him temporarily in 2004, as a civil judge in the northern district of Sinjar (127 km west of Mosul), in addition to appointing another colleague, Ahmed Smouk, as a criminal judge, but they did not stay in their positions for long, as they were decommissioned when the Iraqi transitional government was formed in May 2005.
He says that they met leading figures in the Patriotic Union of Kurdistan in the Sulaymaniyah Governorate in the Kurdistan Region, most notably Mulla Bakhtiar, as well as the late Iraqi President Jalal Talabani, who assured them at the time, of the need to break what he described as barriers to the Yazidis having a judiciary of their own, acknowledging the existence of “racial discrimination against them that cannot be accepted,” Jundi said.
In line with that, in 2005 Talabani appointed two Yezidi judges in the Sulaymaniyah courts, Ahmed Al-Smoki and Qasim Osman, and at that time the Kurdistan Region was composed of two departments, one in Erbil and the other in Sulaymaniyah.
“For me, I was not accepted as a judge at the time, because I was not a graduate of the Judicial Institute and I did not have ten years of service in the legal profession, which are two basic conditions among the conditions for the admission of any judge in Iraq,” Jundi added.
A dead-born law
Jundi comments that the Yazidis do not have a personal status law of their own, saying that several attempts were made after 2003 to legislate such a law, the most important of which was about three years ago, when a group of Yazidi lawyers drafted a personal status law for the Yazidi community and submitted it to Parliament Kurdistan Region. But due to differences within the Yazidi community, as well as an indirect objection by (unnamed) parties within the Kurdistan Region, and negative messages received by the committee, the draft law was shelved to die before its birth, and the situation remains as it is.” Said Jundi, which means keeping the Yazidis’ personal status under laws based on the Hanafi Islamic jurisprudence.
He notes: “In the era of the former Iraqi regime before 2003, the Iraqi judiciary relied on Islamic Hanafi and Jaafari jurisprudence as two main sources. The second one applies to Shiites, and the first one to Sunnis and other religious sects in Iraq, so nothing has changed!”
Daoud Jundi believes that the state in Iraq should be civil, and the judiciary in it should treat all citizens equally without distinction between one component and another, as is the case in European countries, and not by initiating specific laws for each sect, as he said.
However, “a civil state in Iraq will not be achieved in the short and long term, and the Yazidis and other members of non-Muslim sects will remain excluded from the judiciary positions in the Iraqi state.” He added with some disappointment
No jurisdiction of a Muslim over non-Muslim
Delovan Khalil, a Yazidi lawyer, said more clearly: “The rule in Islam is that there is no guardianship of a non-Muslim over a Muslim, in other words, there is no guardianship of an infidel over a Muslim, and since we are a religious minority and Muslims are the majority, so there is no hope that one of us will take over the judiciary one day in Iraq, or at least having a special law regulating our personal status matters.”
Delovan doubts that the judges, who were appointed in Sulaymaniyah in 2005, have heard civil or other cases, and he believes that they only led the public prosecution.
Delovan, along with two other colleagues, opened after the liberation of Sinjar from ISIS, the first legal advice office in the Sinjar district since 2014. They try as much as they can to provide legal advice to those who request it, but this is not enough, Delovan said. “There are thousands of unfinished compensation claims and other thousands of cases of female survivors of ISIS captivity, and it can take many years to adress them,” he added.
Basman Walid, a lawyer in the Nineveh Federal District Courts of Appeal, said that the provisions of the law apply to everyone regardless of their religious background: “This may seem fair in theory, but if we look closely at some issues related to beliefs, we will need to take a serious reaction.”
He points out that there were many attempts to address the matter in light of the political and social changes after 2003, but the most prominent thing that happened was “a formal change, not a fundamental one”, which was changing the name of the Personal Status Court that consider personal matters of religious sects and making it “the Personal Matters Court”.
“Just that”, said Lawyer Basman, and added, “The provisions of the law are still the same, so are the procedures related to its implementation, and only Muslims issue judicial decisions .”
Basman points out that marriage contracts issued by the Yazidi Supreme Spiritual Council, the responsible religious authority, include minor formal changes that hardly distinguish them from marriage contracts issued by personal status courts throughout Iraq.
The contract of the spiritual council begins with the Yezidi basmala “in the name of God, the One” and mentions that the contract was concluded based on Yezidi religious rules, and the names of the two parties to the contract (the married ones) and the names of their mothers, not their fathers.
Also, the specified dower is only mentioned, without mentioning the deferred dowry, while the two of them are mentioned in Muslim marriage contracts.
This copy of the marriage contract is edited in the Spiritual Council based on an official letter sent to it from the Personal Matters Court, where the contract must be sent for registration and authentication and the related fees must be paid, just like marriage contracts concluded by Muslims and others.
However, a source in the Nineveh Appeal Courts stated that Christians are excluded from the application of the personal status law in force in Iraq, which is based on Islamic legislation, and according to this, the religious authority of the Yazidi sect Baba Sheikh, requested the Supreme Judicial Council to exclude the Yazidis as well.
The source, who preferred not to be named, said that the Supreme Judicial Council approved the request of Baba Sheikh according to the letter of the presidency of the Judicial Supervision Commission, Studies Committee No. 84 / Studies / 2015 (2155) dated 06/25/2015.
The letter included that “the provisions and procedures of marriage contracts for members of the Yazidi sect are subject to the customs of the religious authority. Accordingly, the text of Paragraph (5) of Article Ten of the amended Personal Status Law No. (188) of 1959 does not apply to members of the Yazidi sect when its members conclude their marriage contracts outside the courts of personal matters under their customary practices and rituals.
A retired civil judge asserts that “the vast majority of lawyers don’t know that the Court of First Instance – Personal Matters, applies what is stipulated by Sharia law of the sect of one or both parties of the case, so how can the ordinary people know?”
Marriage, dowry, divorce, separation, will, inheritance, and endowment are among the issues that the judge says are related to the religious belief of religious sects, and they are very sensitive issues, and affecting them may raise conflicts and problems that threaten the peace and security of the country.
Therefore, the Iraqi Civil Code permits the application of jurisprudence provisions of religious sects to disputes related to their personal status by civil courts headed by a civil judge among the judges of the same court.
The judge is obliged to implement what is required by the sharia of the particular sect after seeking the advice of the religious authority of that sect, which is known as the (referendum). “The Yezidis have their own religious reference, of course,” the judge concludes.
The Yazidi sect is one of the 17 other sects officially recognized in Iraq under the annex of the Welfare of Religious Communities Statute in Iraq No. 22 of 1981 and published in the Iraqi Fact Sheet / No. 2867 on January 18, 1982. These sects are: “Chaldean, Assyrian, Catholicos, Syriac Catholic, Syriac Orthodox, Armenian Orthodox, Armenian Catholic, Roman Orthodox, Roman Catholic, Latin, Evangelical National Protestantism, Evangelical Protestantism, Seventh-day Adventists, Coptic Orthodox, Umayyad Yazidis, Sabians.”
It is noted that the Iraqi Judicial Council, based on a statistic issued by it in 2020, is completely dependent on Muslim judges, their total number is 1,158 judges, 1,116 of them are males, and only 42 are women.
The constitution does not prohibit sects from judicial leadership
Judge Rizgar Amin denies that there are any constitutional or legal obstacles preventing the Yazidis from taking the judiciary in Iraq, and pointed out that Article 14 of the Constitution of the Republic of Iraq of 2005 in the rights and freedoms chapter, states: “Iraqis are equal before the law without discrimination based on gender or race, nationality, origin, color, religion, sect, belief, opinion, economic or social status.”
But the spokeswoman for the Kurdistan Democratic Alliance bloc in the Iraqi parliament, Vian Dakhil, who is Yazidi, says that the reality of the situation in Iraq is that the Yazidis are not allowed to become judges, and she added, “except for the Kurdistan region, which has Yezidi judges.”
Farhad Hikmat Samir, a researcher on minority affairs, says that the Iraqi state’s religion is Islam, which is the main source of its laws, and this applies to the judiciary. The judge who rules the people who are predominantly Muslims will necessarily be a Muslim judge, according to the jurisprudence rule, the inadmissibility of guardianship of a non-Muslim over a Muslim, “but through my knowledge, I do not find that any of the seventeen recognized sects in Iraq have ever submitted their own legislation to regulate their matters of personal status.” He added.
The researcher means by that, a draft law that is unanimously agreed upon by the members of the sect and is legally drafted so it will be qualified as a proposal that passes through the constitutional channels: the government, the presidency, and the vote in the House of Representatives.
Farhad believes that in the absence of a personal status law for any of the “non-Muslim” sects in Iraq, we will not find a judge from these sects to handle judicial affairs in Iraqi courts.
Ghazi Suhaib Abdel-Warth, a lawyer, stresses that Personal Status Law No. (188) of 1959, in paragraph 1 of its second article, states: “the provisions of this law apply to Iraqis except for those who are excluded by a special law.”
In other words, the law does not apply to Iraqis who are excluded by a law of their own, and this exception from the scope of the personal status law can be inferred from the significance of the texts of Articles (11) and (13) of the Courts Statement No. (6) of 1917.
Article (13) necessitates the application of personal law or norms in the personal status articles under Article (11) of the Courts statement. Since there is no special law for the Yazidis, the provisions of the Personal Status Law are the ones that apply to them.
We are decreasing and the emigration continues!
Lawyers we interviewed at the Nineveh Federal District Court of Appeals agreed on the importance of legislating a private law so that the members of the Yezidi component feel their privacy, and the most important thing is to deal with members of all components as citizens with full rights by not excluding them from exercising any public office as long as they provide competence and eligibility requirements regardless of their affiliation.
Lawyers explained that the Iraqi legislator did not violate the privacy of the components, but rather granted special exceptions that the Court of First Instance works with if no text addresses them in the Personal Status Court.
Lawyer (A, Y) said that the sensitivity of the Yazidis to anything related to Islamic legislation was not in this way previously, “but things changed after the genocide they were subjected to and the crimes that ISIS committed against them in the name of Islam.”
He believes that they have the right to have their own law that governs their personal matters, which, according to him, will only be a clause within paragraphs in the Personal Status Law, that governs some issues like marriage, divorce, inheritance, endowment, and others. However, it requires a strong parliamentary movement to legislate or add this kind of clause to the law. He added in doubt, “It does not appear that the Yazidis or any other minority have such parliamentary power at present, and there are differences over the nature of the law among them.”
Ghanem Bashir Khalil, a legal advisor, pointed out that legalizing the Yazidis code is not easy at all, and he explained: ” Inheritance, for example, is governed on the basis of social custom for them, as there is no specific text to which they appeal for, and trying to establish a law in this regard will cause a big problem in the Yazidi community.”
He added, “But in the end, a conventional law will give individuals clear rights within society and prevent abusing them by some of its members under the pretext of customs.” Therefore, he prefers that the Yezidis agree first to establish the provisions of the inheritance, and believes that this may take years or perhaps decades.
No attention… they have bigger worries
Ghassan Murad, a thirty-three years old man from the “Jim Mashko” camp for the Yazidi IDPs in Zakho in the Kurdistan Region, asked, “Doesn’t the law need a place?”, then he answered, “Most of the Yazidis are now in the camps or outside Iraq, why would they need then a law that will not apply to them?”
He added while pointing to a group of women who were with their children at the entrance to the camp, “They don’t care at all about any law that applies to them as much as they care about finding a permanent home for them to settle in, and food to fill their stomachs with.”
He started talking about the difficulty of the return of many displaced people who left their homes in the Sinjar district in the summer of 2014 because their homes are not rebuilt yet due to political divisions and the spread of many armed groups that control the majority of the districts in Sinjar where Yazidis live.
He bent down and picked up a handful of dirt in his hand, lifted it, and started emptying it little by little. “The Yazidis are decreasing like this, and soon you will find only a few of us here in Iraq.”
Then he hit his palms together to get rid of the dirt that was stuck to them, and said in a broken voice, ” what would we need our personal status law for?”
In the north area, Saeed Khairy, who returned here after a journey of displacement that lasted for more than six years, does not seem happy with the situation of the Yazidis, which he sees as worrying. He, like other residents, does not rule out the possibility of repeating what happened to the area in August 2014.
To resolve this concern, his demands do not seem as high as those advocated by many Yazidis before, such as the formation of an administrative entity for the Yazidis in their areas of presence under the supervision of the United Nations, or establishing their own laws or granting them sovereign positions in the country. Rather, he only wants the government to deal with the Yazidis constitutionally and legally as citizens with full rights, just like others.
“We want to feel safe in a country that believes in the right of citizenship without discrimination, not to be second-class citizens or outcasts who are not entitled to what other Muslims are entitled to. Our continued exclusion from high positions and dealing with us inferiorly in many positions means that there is acceptance of what ISIS did to us and that the path seems clearly laid out for the repetition of our tragedies in the future.” He said.
An Al-aalem Al-jadeed special report produced with the support of the Investigative Foundation NIRIJ and the contribution of Myasir Al-Adani