The Amendments to Iraq’s Personal Status Law: What is at Stake from a Human Rights and Political Perspective?
LORENA STELLA MARTINI
COMMENTARY #49 • OCTOBER 2024
The proposed amendments to Iraq’s Personal Status Law need to be read within the broader Iraqi political framework ahead of 2025 parliamentary elections, whose dynamics risk obfuscating the severe risks for human rights that changing Law 188/1959 would entail, namely for Iraqi women and girls.
While the war ravages the Middle East, the Iraqi parliament is discussing an amendment to the Personal Status Law (Law 188/1959) that might determine a backward step for the rights of girls and women in the country. The proposal to amend the current law, which was presented by an independent Iraqi Member of Parliament (MP) but is strongly supported by the governmental majority, has so far undergone two parliamentary readings – one in early August 2024 and the second in mid- September 2024, after MPs from the opposition successfully boycotted a session initially scheduled for early September. The Supreme Court has also recently validated its alignment to the Iraqi Constitution.
At the same time, though, women’s rights and civil society organizations in the country and international NGOs are mobilizing against this amendment; Iraqi NGOs, politicians and activists repelling the draft bill have also established an ad hoc coalition, named Coalition 188 (after the number of the law under discussion). In early September, UN experts sent a letter to the government of Iraq, in which they extensively clarified how “the passing of these amendments would potentially jeopardize the status of women and girls in Iraq, as well as expose children to increased risks. The effect will be felt by the wider society in Iraq, preventing the rise of women and girls to their full potential.” At the beginning of October, the European Parliament passed a resolution “urging Iraq’s Parliament to fully and immediately reject the proposed amendments to Law 188/1959”. The resolution also “underlines, with utmost concern, that the amendments would violate Iraq’s international obligations regarding women’s fundamental rights, and result in a significant rollback, an increasingly negative international reputation and the withholding of some foreign assistance from bilateral and multilateral organisations”.
Concrete risks for women’s rights
Law 188, which dates back to 1959, currently applies to all citizens and regulates all issues and rights related to family and its management in Iraq. Should the amendments pass, things would radically change: within six months from its approval, Sunni and Shia religious Councils would be granted the authority to develop their specific “code of Sharia rulings” on matters related to personal status. Individuals could then choose which code to apply to their personal matters – provided that, in case of problems within the married couple, the legal regime chosen by the husband would take precedence.
Those opposing the amendments argue that the ruling of religious courts would represent a huge step backward with regard to gender equality before the law – the legal age for marriage, the legal registration of marriages (which would also become a prerogative of religious Councils), divorce, limitations to polygyny and children’s custody are all areas where women’s rights would be jeopardized. In particular, outcry from the civil society has regarded the fear that, as per the Shia Ja‘afari jurisprudencethat would regulate family law for Iraqi Shiites, girls could be married off since the age of nine.
At the same time, Islamic jurisprudence is not fixed but open to interpretation; as such, the situation could become chaotic, trigger intra-sect conflicts and discriminate against a part of the national population. In other words, a person’s (and especially a woman’s) rights would greatly differ according to the sect she belongs to. This condition would not only increase the sectarian character of the Iraqi society, but it would also codify it from a legal point of view, thus opening the way to further (formal) fragmentation and polarization.
Political calculations behind the scenes of the amendments
This is not the first attempt to change Law 188/1959: previous unsuccessful (and even more radical) attempts were made in 2004 right after the collapse of the regime led by Saddam Hussein and before the approval of the current Iraqi constitution, but also more recently in 2014 and 2017. Given the current composition of the Iraqi Parliament, where the majority of seats is held by the Coordination Framework (CF), which unites several Shia parties with a conservative outlook (and holding ties to Teheran, although heterogeneously), this time might be different. With parliamentary elections scheduled for 2025 (and rumors about possible early elections), efforts to advance these amendments seem to respond to the CF’s need to win over the most conservative Shia electorate by showcasing its religious credentials. Indeed, the upcoming legislative elections will be a challenge for the Shia parties composing the CF, which came to power after MPs affiliated with Muqtada al-Sadr, who gained the majority of seats in the 2021 vote, had failed to form a government of national unity and had withdrawn from the parliamentary assembly.
After announcing his political withdrawal in summer 2022 and suspending the activities of his movement in April 2023, the leader of the Sadrist movement quickly changed direction in spring 2024 by announcing the establishment of his new political platform, the “Shiite National Movement”. Such move suggests the will to mobilize supporters around sectarian lines and to position himself as the legitimate advocate of the Shia community and its interests, thus overtly challenging the CF. Should such intra-Shiarift worsen, the risk would be plunging Iraq into another deadlock after the elections or – even worse – into another conflict, while further polarizing Iraqi political arena around sectarian and ethnic lines.
At the same time, also Sunni MPs have expressed their agreement to the amendments to Law 188/1959, likely in the hope that this might help negotiations for the amendment to the General Amnesty Law, which is still stalled despite it being one of the reasons why Sunni parties supported the government led by Muhammad Shia al-Sudani. Hence, as evident, the debate around the amendments to the Personal Status Law is tainted by political calculations which risk obfuscating the severe risks for human rights that such changes would entail.
A worsening scenario for human rights in Iraq
Such a backward step in the respect of human rights is not happening in the void in the country. In April 2024, the approval by the Iraqi parliament of an amendment to the Law on Combatting Prostitution (Law 8/1988) criminalized homosexual relations and introduced discriminatory measures against the LGBTQA+ community, among which fines and penalties for “promoting homosexuality”. The amendment, which was proposed by the same MP who is now advancing the long-standing change in the Personal Status Law, has further worsened the situation of LGBTQA+ citizens in Iraq, and has been strongly criticized by human rights organizations, beside representative from US and European governments.
Against this backdrop, a change of Iraq’s Personal Status Law in the proposed direction would further affect the life of Iraqi citizens. According to a survey carried out last summer on a sample of around 60.000 citizens, around 73% disagrees with changing the current law, and more than 80% prefers the Personal Status Law to draw on civil rather than on religious basis. It remains to be seen how the Parliament will act in this regard, and whether the several human rights concerns advanced by the opposition, Iraqi civil society, international human rights organizations and international actors will be taken into consideration.